Jayakumar Abraham v. Union Of India And Others, Kerala High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The petitioner applied for the post of District Judge pursuant to a High Court recruitment notification identified as Exhibit P1. Exhibit P1 set a minimum eligibility of practice at the Bar (consistent with constitutional requirements) and stated that selection would be by oral examination. Exhibit P1 also reserved the right, when applications were "disproportionately large" compared to vacancies, to shortlist candidates by length of practice at the Bar and to invite only such shortlisted candidates for the oral examination. That shortlisting was declared not to apply to candidates belonging to Scheduled Castes (SC) and Scheduled Tribes (ST), in view of reservations. The petitioner represented that he had completed eight years of practice but was not invited for the interview because the High Court shortlisted candidates by longer length of practice (the petitioner believed only those with sixteen years were invited, except SC/ST). The petitioner challenged this shortlisting as discriminatory and as violating Article 233(2) of the Constitution; he sought relief against being weeded out while similarly qualified SC/ST candidates were not. The court considered these contentions, analyzed constitutional provisions and cited precedent, and ultimately dismissed the petition (noted in the text as "O.P fails, dismissed").

Legal Issues Presented

Whether shortlisting applicants for interview by requiring a longer period of practice than the constitutional minimum (as a screening device when applications are numerous) violates Article 233(2) of the Constitution.

Whether exempting SC/ST candidates from such shortlisting while applying it to other candidates amounts to unlawful discrimination in violation of Article 16(2) or otherwise offends constitutional guarantees.

Whether the rule-making or appointing authority may, in practice, fix a higher standard or apply a screening criterion (length of practice) over the minimum eligibility laid down in statutory/constitutional provisions, without altering or violating those provisions.

Arguments of the Parties

Petitioner's Arguments

The petitioner, who had 8 years' practice, contended that the High Court shortlisting excluded him from interview while apparently inviting candidates with a much longer period of practice (the petitioner believed 16 years) and thereby discriminated against him.

He argued that this shortlisting amounted to discrimination and violated Article 233(2) because the minimum required practice period was being effectively raised by the shortlisting process.

The petitioner further contended that if a weeding-out/shortlisting procedure were to be adopted, it should be applied uniformly to all candidates (including SC/ST), otherwise it would unfairly discriminate against him and others similarly situated.

The petitioner additionally argued that allowing SC/ST candidates with fewer years of practice to proceed would offend Article 16(2) (prohibition of caste-based discrimination).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Prathapan v. Registrar of High Court of Kerala [1984 (1) L.L.N (S.N.O.C) 29]	Permissibility of inviting applications/setting a higher standard as a screening device (narrowing the field) without modifying the statutory qualification; such screening is to aid selection and does not amount to altering statutory rules.	The court relied on this decision to hold that Clause 4 of Exhibit P1, which allowed shortlisting by higher experience than the minimum qualification, did not modify the statutory/constitutional requirement and was a permissible screening method.
Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar [1995 (2) L.L.N 314]	Shortlisting applicants for interview on a rational and objective basis (e.g., longer practice) where no written test exists is part of the selection process and does not conflict with statutory eligibility requirements; shortlisting does not amount to altering eligibility criteria.	The court applied the Supreme Court's reasoning to affirm that calling only those with longer practice for interview, when minimum eligibility is lower, is permissible as a selection/screening device and does not violate the statutory/constitutional eligibility norms.
Northern Plastics, Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. [(1997) 4 SCC 452]	Followed the principle that rational shortlisting for interviews is permissible and does not contravene eligibility criteria.	The court noted that this later decision followed the principle in Navnit Kumar Potdar, reinforcing the acceptability of shortlisting as part of selection; it supported the court's conclusion that Exhibit P1's shortlisting was lawful.

Precedent

Rule or Principle Cited For

Application by the Court

Prathapan v. Registrar of High Court of Kerala [1984 (1) L.L.N (S.N.O.C) 29]

Permissibility of inviting applications/setting a higher standard as a screening device (narrowing the field) without modifying the statutory qualification; such screening is to aid selection and does not amount to altering statutory rules.

The court relied on this decision to hold that Clause 4 of Exhibit P1, which allowed shortlisting by higher experience than the minimum qualification, did not modify the statutory/constitutional requirement and was a permissible screening method.

Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar [1995 (2) L.L.N 314]

Shortlisting applicants for interview on a rational and objective basis (e.g., longer practice) where no written test exists is part of the selection process and does not conflict with statutory eligibility requirements; shortlisting does not amount to altering eligibility criteria.

The court applied the Supreme Court's reasoning to affirm that calling only those with longer practice for interview, when minimum eligibility is lower, is permissible as a selection/screening device and does not violate the statutory/constitutional eligibility norms.

Northern Plastics, Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. [(1997) 4 SCC 452]

Followed the principle that rational shortlisting for interviews is permissible and does not contravene eligibility criteria.

The court noted that this later decision followed the principle in Navnit Kumar Potdar, reinforcing the acceptability of shortlisting as part of selection; it supported the court's conclusion that Exhibit P1's shortlisting was lawful.

Court's Reasoning and Analysis

The court's analysis proceeded in a stepwise manner grounded in the constitutional text, the recruitment notification (Exhibit P1), and judicial precedent:

The court examined Article 233(2) of the Constitution, which states that a person not already in the service of the Union or the State shall be eligible to be appointed as District Judge only if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court. The court characterized seven years as a minimum requirement.

The court held that a minimum constitutional requirement does not preclude the rule-making or appointing authority from adopting higher standards or using a screening process when faced with a disproportionately large number of applicants. Exhibit P1 expressly reserved the right to shortlist by length of practice when applications were large.

The court reasoned that shortlisting applicants by length of practice, when applied only to applicants who already satisfy the constitutional minimum, does not amount to a relaxation or alteration of the constitutional requirement. The shortlisted candidates necessarily meet the minimum prescribed by Article 233(2).

The court relied on Prathapan to analogize the shortlisting by higher standard to a permissible screening device (inviting only candidates with higher class of degree in that case), concluding that such a device narrows the field for effective selection without modifying statutory qualifications.

The court further relied on the Supreme Court's decision in Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar, which explicitly upheld shortlisting applicants with longer practice (seven and a half years) when minimum eligibility was lower (five years) as part of a rational and objective selection process and not in conflict with statutory eligibility clauses. The court quoted and applied the principle that shortlisting is part of the selection process and must be based on rational/objective considerations to select the best candidates.

On the contention regarding SC/ST candidates being exempt from shortlisting, the court observed that reservation exists for SC/ST and that, given historically lower representation and fewer SC/ST applicants, not weeding out SC/ST candidates does not amount to arbitrariness or discrimination against other candidates. The court invoked Article 335 and rules implementing reservation (rules 14 to 17 of the General Rules as incorporated in special rules for the Kerala State Higher Judicial Service) as supporting the preferential treatment intended to ensure representation.

Addressing the claim under Article 16(2) (prohibition of caste-based discrimination), the court noted Article 16(4) permits reservations in favour of backward classes inadequately represented. The petitioner did not dispute that SC/ST are backward or inadequately represented. Thus, allowing SC/ST candidates to compete without being weeded out by the same shortlisting criterion did not constitute a violation of Article 16(2).

On balance, applying these constitutional provisions and precedents, the court concluded that the shortlisting criterion in Exhibit P1 was a permissible, rational method of screening and did not violate Article 233(2), Article 16(2), or other fundamental rights; the petitioner's challenge failed.

Holding and Implications

Holding:
O.P fails, dismissed.

Implications:

The direct effect is that the petition challenging the High Court's shortlisting procedure (Exhibit P1) was dismissed and the petitioner obtained no relief.

The court affirmed that shortlisting candidates by reference to a longer period of practice than the constitutional minimum is permissible as a rational screening device when selecting from a large pool of applicants, provided shortlisted candidates meet the constitutional/statutory minimum qualifications.

The court held that exempting SC/ST candidates from such shortlisting in order to effectuate reservation and ensure representation is constitutionally permissible and does not amount to unlawful discrimination under Article 16(2) where Article 16(4) and Article 335 apply.

The opinion applied and relied upon existing precedent (Prathapan; Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar; Northern Plastics v. Hindustan Photo Films) rather than announcing a novel legal principle; no new precedent was expressly declared by the court in this opinion.

Jayakumar Abraham v. Union Of India And Others

1. Petitioner was an applicant to the post of District Judge when the High Court notified recruitment as per Exhibit P1. He has completed 8 years of practice as lawyer and is qualified in terms of special rules as well as the qualification standards made mention of in Exhibit P1. In Exhibit P1 notification, it was made clear to every applicant that selection will be on the basis of oral examination. It was also made clear that if the number of applicants is disproportionately large vis-a-vis the number of posts to be filled up, the High Court may shortlist the candidates by their length of practice at the Bar and such shortlisted candidates alone would be invited for oral examination. It was made clear that such shortlisting will not be applicable to the candidates belonging to schedule caste/schedule tribe obviously because of the reservation available in respect of such castes and tribes and the experience of the High Court that sufficient number of scheduled caste/scheduled tribe are not being represented in the concerned service. Petitioner submits that the High Court had shortlisted the candidates on the basis of length of practice at the bar and the petitioner was not invited for interview. Petitioner further submits that, he understood that, only those candidates who have completed 16 years of length of practice at the bar alone were invited for interview, except in the case of SC/ST candidates. This amounts to discrimination and violation of the provisions contained in Art. 233(2) of the Constitution of India. If such weeding out has to be adopted, that shall be uniformly made applicable to the SC/ST candidates as well the petitioner contends. Otherwise it will emerge as a discrimination to the persons like the petitioner, who had been weeded out in spite of possession of similar qualifications as the SC/ST candidates.

2. I am unable to accept this contention. Article 233(2) of the Constitution of India reads as follows:

“A person not already in the service of the union or of the State shall only be eligible to be appointed as District Judge if he has been for not less than seven years as advocate or a deader and is recommended by the High Court for appointment.”

This makes it clear that in the case of direct recruitment, an incumbent shall have practice for not less than 7 years as an advocate or a pleader. It is the minimum requirement. It does not mean that the rule-making authority or the appointing authority cannot fix higher standards than the minimum. Though Exhibit P1 notification did not set out at the first instance the higher standard than that is required under the said article, to keep out situation of larger number of applications as compared to the available vacancies, a right was reserved in Exhibit P1 notification itself to shortlist the candidates by the length of practice at the Bar. When applications are invited from candidates, possessing minimum qualification stipulated in the notification which is in time with the constitutional provisions in that behalf and when shortlist is prepared from among such qualified candidate based on longer years of practice, it cannot be taken that the provision contained in Art. 23 2(2) of the Constitution of India is violated. Because the candidates so shortlisted, will necessarily satisfy the minimum qualification made mention of in the said article. There is no relaxation in the case of those who had been included in the shortlist by way of weeding out the persons with a lesser number of years practice in the Bar. So there is no descrimination or violation of any fundamental rights. Every recruitment agency in a situation of large number of applications as compared to the available number of vacancies to be filled up can shortlist the candidates based on the criterion as adopted in Cl. 4 of Exhibit P1 notification. Thus a general power is vested with the executive authority. The only restriction imposed on the executive authority will be that the candidates so shortlisted shall conform to the statutory or constitutional requirements regarding qualification. When persons are so shortlisted on the basis of length of practice from among the applicants, who possess the minimum required number of years of practice as provided for in the constitutional provision extracted above, are arise no question of any relaxation of that requirement. Therefore, that contention does not have any relevance.

3. This aspect is covered by a decision reported in Prathapan v. Registrar of High Court of Kerala [1984 (1) L.L.N (S.N.O.C) 29]. Of course that case relates to recruitment to the post of assistants in the service of the High Court of Kerala. The minimum qualification as per the rules was degree from a University. In spite of that, the appointing authority invited applications only from the persons possessing graduation with second class, a higher standard than that insisted by the rules. When that was challenged, it was held that such stipulation involves no modification of the statutory rules or the qualifications prescribed by the statutory rules, it only lays down a process of screening the candidates by narrowing the field of choice by eliminating third class graduates from scrutiny to minimise the difficulties of screening and to secure the better level of talent for the High Court service. The principle is one and the same in Cl. 4 of Exhibit P1. Therefore on the basis of the said ruling the contention of the petitioner in that regard has to be negatived.

4. The issue is also covered by a decision of the Supreme Court in Madhya Pradesh Public Service Commission v. Navnit Kumar Potdar [1995 (2) L.L.N 314]. An exactly similar situation arose therefor consideration of the Supreme Court. Applications were invited for appointment to the post of Presiding Officer of Labour Court from among advocates having not less than five years practice. In view of the large number of applicants as compared-to four vacancies, only applicants with seven and a half year practice along were invited for interview, though statutory stipulation as regards qualification was only five years practice. The Madhya Pradesh High Court took the view that this amounted laying down criterion in violation of the statutory provisions. Reversing this view, the Supreme Court held, in Para. 8, at page 317.

“In this background, it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding shortlisting the number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best, candidates among the applicants for the post in question. This process of short-listing shall not amount to altering or substituting the eligibility criteria given in statutory rules, or prospectus. In substance and reality, this process of shortlisting is part of the process of selection. Once the applications are received and the Selection Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be shortlisted, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the commission if the applicants having completed seven and half years of practice are only called for interview because such applicants having longer period of practice, shall be presumed to have better experience. This process will not be in conflict with the requirement of S. 8(3)(c) which prescribes the eligibility for making an application for the post in question. In its sense S. 8(3)(c) places a bar that no person having less than five years of practice as an advocate or a pleader shall be entitled to be considered for appointment to the post of Presiding Officer of the Labour Court. But if amongst several hundred applicants, a decision is taken to call for interview only those who have completed seven and half years or practice, it is neither violative nor in conflict with the requirement of S. 8(3)(c) of the Act.

This was again followed in Northern Plastics, Ltd. v. Hindustan Photo films Manufacturing Co., Ltd. [(1997) 4 SCC 452].

5. Another contention of the petitioner is that in the case of SC/ST candidates they are not weeded out in similar manner. There is no dispute that SC/ST candidates have got reservation in the matter of appointment. Even going by Exhibit P1, 8 vacancies are notified. One among them shall necessarily go to SC/ST candidates. Petitioner has no case that there are much number of SC/ST candidates as compared to other castes. In such circumstances, if the High Court does not weed out SC/ST candidates on the basis of length of service and allow all SC/ST candidates with 7 years practice at the bar to compete for selection, it cannot be stated to be arbitrary or discriminatory as compared to the rights available to the petitioner. What is witnessed every day in the Court room is that presence of members of SC/ST candidates, are far less as compared to the candidates belonging to other castes. Naturally, the applicants for the post will also in the same pattern. Moreover Art. 335 of the Constitution of India provides that claims of such candidates shall be taken into consideration, subject to efficiency, for appointment to civil service. Reservation as contained in rules 14 to 17 of the General Rules in the K.S and S.S.R, which are incorporated as per special rules for the Kerala State Higher Judicial Service is to effectuate this constitutional provision. When such SC/ST candidates who are less in number are not weeded out as in the case of candidates belonging to other communities it cannot result discrimination as compared to persons belonging to other communities. Because that is intended to ensure their representation in service which is a constitutional mandate.

6. It is further contended that consideration of SC/ST candidates having less number of years of practice than the petitioner will offend Art. 16(2) which prohibits discrimination on the basis of caste. But Art. 16(4,) makes it clear that nothing in Art. 16 which includes the provision in Art. 16(2) shall prevent the State from making any provision for reservation for appointments or posts in favour of any backward classes of citizens inadequately represented. The petitioner does not have a case that the scheduled castes/scheduled tribes are not backward classes or that they are adequately represented. If the scheduled caste candidates are not weeded out on the basis of number of years of practice as in the case of other candidates, it will not amount to discrimination. In such circumstances, he cannot contend that Art. 16(2) is violated.

O.P fails, dismissed.

Original Petition No. 15870 of 2001

Jayakumar Abraham v. Union Of India And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jayakumar Abraham v. Union Of India And Others

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