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Case Number

D.B Special Appeal No. 81 of 1969

Attorney(S)

M. Mridul, for Petitioner;
G.C Kasliwal, Advocate General with B.C Chatterjee, Government Advocate-cum-Addl;
Advocate General R.N Munshi, Addl. Govt. Advocate

Judges

Mr. Bhagwati Prasad Beri
Mr. Guman Singh

Acts

rules 15(ii) and 8(ii) of the Rajasthan Higher Judicial Service Rules, 1969, hereinafter
rule 8(ii) or rule 15(ii) of the Rules
Rule 8(H) or rule 15(h) of the Rules
rules 8(H) and 15(H) of the Rules
Judicial Service Rules, 1955
it.5. Rule 3(b) of the Rules
Rule 8(ii) or rule 15(ii)
rule 8(ii) or rule 15(H).
clause (ii) of rule 8,

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Smart Summary

Summary of Opinion — Kan Singh, J.

Factual and Procedural Background

The appeal under section 18 of the Rajasthan High Court Ordinance challenges a Single Judge's judgment dated 15-9-69 which dismissed the appellant's writ petition. The core subject-matter is the vires of rules 8(ii) and 15(ii) of the Rajasthan Higher Judicial Service Rules, 1969 ("the Rules"), made by the Governor under Article 309 read with Article 233 of the Constitution and brought into force on 21-1-69.

Facts regarding the appellant: he was enrolled as a Pleader on 28-8-53, became an Advocate under the Advocates Act, 1961 on 4-11-62, practised in Rajasthan for a time and later moved to Gujarat where he was enrolled in April 1969 and removed from the Rajasthan Bar rolls. In aggregate he had about 16 years' practice at the Bar, of which about 6 years and 2 months were as an Advocate.

The 1969 Rules provided recruitment to the Rajasthan Higher Judicial Service by promotion and by direct recruitment from Advocates who had practised in the Courts of Rajasthan for not less than seven years. The Registrar invited applications for six direct-recruit vacancies; the appellant did not apply, believing himself ineligible. He challenged the vires of the challenged Rules as being violative of Articles 15, 16 and 233 of the Constitution.

The Single Judge had rejected the writ petition, holding that (a) the seven-year practice requirement in Rajasthan had a reasonable nexus with securing efficient administration of justice (knowledge of local law, conditions and language) and (b) Article 233(2) sets minimum qualifications only, permitting the rule-making authority to prescribe more stringent qualifications; the Single Judge relied on the Supreme Court's observations in Pandurangrao v. Andhra Pradesh Public Service Commission.

Legal Issues Presented

Whether rules 8(ii) and 15(ii) of the Rajasthan Higher Judicial Service Rules, 1969 are vires or violative of Articles 15, 16 and 233 of the Constitution.
Whether the requirement that direct recruits be "advocates who have practised in the Court or Courts subordinate thereto for a period of not less than seven years" must be interpreted to mean seven years' practice exclusively as an Advocate, thereby excluding practice partly as a Pleader.
Whether confining eligibility for direct recruitment to persons who have practised in Rajasthan (and not elsewhere) amounts to impermissible discrimination lacking a reasonable nexus with the object of the Rules.
Whether the appellant, having not applied for the advertised posts, had sufficient interest (locus) to challenge the Rules and thus whether the appeal should be dismissed on that preliminary ground.

Arguments of the Parties

Appellant's Arguments

The appellant challenged the vires of rules 8(ii) and 15(ii) as violative of Articles 15, 16 and 233 of the Constitution.
He contended that by confining eligibility for direct recruitment to Advocates who had practised in Rajasthan, the Rules discriminated on the ground of place of residence (or practice) and that such discrimination lacked a reasonable nexus with the object of the Rules.
He argued that Article 233(2) makes both Pleaders and Advocates eligible for appointment as District Judges, and that the Rules impermissibly cut down eligibility to Advocates practising for seven years in Rajasthan, excluding Pleaders or those who practised partly as Pleaders.
The appellant did not apply for the vacancies because he believed he was ineligible; he relied on a Registrar's administrative letter (page 34 of the paper book) that interpreted the Rules to require practice exclusively as an Advocate.

Respondent / Advocate General's Arguments

The Advocate General raised a preliminary objection that the appellant lacked sufficient interest because he had not applied for recruitment; accordingly, in the exercise of the Court's discretion under Article 226, the appeal should be dismissed on that ground alone.
At argument the Advocate General conceded that the Rules could be interpreted either in the restrictive manner set out in the Registrar's letter or in the broader way favoured by the Court (i.e., that the seven years' practice may be partly as a Pleader).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pandurangrao v. Andhra Pradesh Public Service Commission	Permits rule-making authorities to prescribe qualifications (such as knowledge of local law, regional language and experience) relevant to recruiting suitable persons to the judicial service; supports reasonable classification for recruitment.	The Court relied on this authority (as relied upon by the Single Judge) to uphold that the Rules' objective of securing efficient administration of justice justified prescribing practice-in-Rajasthan qualifications and that such classifications are permissible.

Court's Reasoning and Analysis

The Court undertook a textual and constitutional comparison and proceeded in discrete analytical steps:

Textual analysis of the Rules: the Court examined the language of rule 8(ii) and rule 15(ii) which recruit "by direct recruitment from the advocates who have practised in the Court or courts subordinate thereto for a period of not less than seven years." The Court identified two embedded qualifications: (a) the person should be an Advocate; and (b) the person should have practised for not less than seven years.
Interpretation of "practised for not less than seven years": the Court concluded that the seven years' practice requirement need not be exclusively as an Advocate and could be satisfied by practice partly as an Advocate and partly as a Pleader. The decisive focus, the Court held, is practice in the Rajasthan High Court or subordinate courts for seven years, rather than the exact label under which some of that practice occurred.
Constitutional comparison and purposive construction: the Court relied on Article 233, which makes a person eligible for appointment as a District Judge if he has been "an Advocate or a Pleader" for seven years. This constitutional language, the Court reasoned, necessarily contemplates mixed practice (partly as Pleader and partly as Advocate). By contrast, Article 217 sets a strict "ten years as an Advocate" requirement for High Court judges, illustrating how the draftsmen would have used more restrictive language if they intended to exclude Pleaders for District Judge appointments. Hence, an interpretation that would exclude Pleader practice would be incongruent with Article 233's structure and purpose.
Rejection of the Registrar's restrictive administrative interpretation: having considered that two reasonable interpretations were possible, the Court preferred the interpretation consistent with constitutional requirements and rejected the Registrar's letter which read the Rules as requiring practice exclusively as an Advocate.
On vires under Articles 15/16/233 and reasonable classification: the Court agreed with the Single Judge and the cited Pandurangrao authority that the Rule-making authority could prescribe qualifications designed to secure efficient administration of justice (for example, knowledge of local laws, local conditions, and regional language). The requirement of seven years' practice in Rajasthan was held to have a reasonable nexus to that legitimate objective and so did not amount to impermissible discrimination.
Article 233(2) as a minimum-qualifications provision: the Court emphasized that Article 233(2) prescribes minimum qualifications and does not fetter the rule-making authority under Article 309 from prescribing higher or additional qualifications if necessary in the interest of the service. The Court further observed that the present recruitment is to a higher grade with higher salaries and that additional local-practice qualifications were thus justifiable.
Disposition concerning appellant's locus: although the Court rejected the Registrar's restrictive construction and interpreted the Rules in a broader, constitutionally consistent manner, it declined to grant the appellant relief because he had not applied for the advertised posts. The Court considered the Advocate General's preliminary objection (lack of sufficient interest) as a legal ground and found it appropriate to examine; ultimately the Court was not inclined to grant relief given the appellant's non-application.

Holding and Implications

Holding: The appeal was dismissed. The Court concluded that:

DISMISSED

Key consequential findings and immediate effects:

The Court interpreted rules 8(ii) and 15(ii) to allow the seven years' practice requirement to be satisfied by practice partly as a Pleader and partly as an Advocate; the Registrar's administrative letter interpreting the Rules to require seven years exclusively as an Advocate was rejected.
The challenged Rules (rules 8(ii) and 15(ii)) were held not to be violative of Article 233 of the Constitution; the Court found a reasonable classification in requiring practice in Rajasthan and a sufficient nexus to the objective of securing efficient administration of justice (knowledge of local law, local conditions, and regional language).
Article 233(2) was treated as prescribing minimum qualifications; the rule-making authority under Article 309 could prescribe additional qualifications in the interest of the service.
Despite the foregoing interpretative rulings, the appellant was not granted relief because he had not applied for the advertised vacancies; the Court left the parties to bear their own costs.

Broader precedent or policy statement: The Court applied existing principles (including those discussed in Pandurangrao) to uphold the rule-making authority's ability to prescribe qualifications reasonably related to effective judicial administration. The opinion makes clear the Court's approach to textual and constitutional construction where ambiguity exists: prefer an interpretation consistent with constitutional design (here Article 233).

Costs: parties to bear their own costs of the appeal.

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Daulat Raj Singhvi v. State Of Rajasthan

Kan Singh, J.:— The appeal before us which is brought under sec. 18 of the Rajasthan High Court Ordinance against a judgment of a learned Single Judge of this Court dated 15-9-69 dismissing the appellant's writ petition, raises a question about the vires of rules 15(ii) and 8(ii) of the Rajasthan Higher Judicial Service Rules, 1969, hereinafter to be referred as the “Rules”.

2. The appellant was enrolled as a Pleader on 28-8-53 and practised as Pleader in Rajasthan till 4-11-62 when he was enrolled as an Advocate under the Advocates Act of 1961. He continued to practise as an Advocate in Rajasthan for some time, but thereafter he shifted to Gujarat and was enrolled as an Advocate on the Bar Council of Gujarat in the month of April, 1969. Accordingly, his name was removed from the rolls of the Bar Council, Rajasthan. The appellant in this way had to his credit about 16 years practice at the Bar, out of which he had practised for 6 years and 2 months as an Advocate. The appellant was born in Rajasthan and he had his education, in Rajasthan. The Governor of Rajasthan made the Rules in exercise of his powers under Art. 309 read with Art. 233 of the Constitution and they came into force on 21-1-69. In accordance with these Rules the Rajasthan Higher Judicial Service which was till then governed by the Rajasthan Higher Judicial Service Rules, 1955 was reconstituted. The Rules of 1969 provided for two sources of recruitment to the service as in the previous Rules namely, (1) by promotion from amongst the members of the Rajasthan Judicial Service; or (2) by direct recruitment from the Advocate who have practised in the Court of Rajasthan for a period of not less than 7 years. It is the provision relating to the direct recruitment which is under challenge. In accordance with these Rules the Registrar, Rajasthan High Court invited applications for direct recruitment to the Rajasthan Higher Judicial Service from Advocates who had practised in the Rajasthan High Court or Courts subordinate thereto for a period of not less than 7 years and who were otherwise eligible for appointment. Six vacancies were declared to be filled in by direct recruitment. A number of applications were received, but the appellant did not make any application thinking that he was not eligible for appointment as a District Judge. He challenged the vires of rules 8(H) and 15(H) of the Rules on the ground that they were violative of Art. 15, 16 and 233 of the Constitution. The appellant's contention before the learned Single Judge was that as the eligibility for direct recruitment was confined to Advocates in Rajasthan only, discrimination was brought about on account of the place of residence and this had no reasonable nexus with the object sought to be achieved by the Rules. It was next contended that the rules were violative of Art. 233(2) of the Constitution on the ground that whereas the Article made both pleaders as well as advocates eligible for recruitment to the service as District Judges, the Rules have cut down the eligibility to only advocates who have practised for 7 years in Rajasthan. The learned Single Judge, who heard the writ petition, repelled the contentions. He held that the object of the Rules was to recruit suitable and proper persons to the Higher Judicial Service in the State with a view to securing an efficient administration of justice and the qualification of 7 years practice as an Advocate in the Rajasthan High Court and the Courts subordinate thereto had a reasonable nexus with the object underlying the Rules, as the 7 years' practice will enable a person to be recruited to acquire sufficient knowledge of local laws, local conditions as well as the regional language which was necessary for discharging the duties of a District Judge efficiently. As regards the second contention it was held by the learned Judge that Art. 233(2) of the Constitution laid down only the minimum qualifications and it was open to the rule making authority to prescribe more stringent qualifications for the recruitment of person to the Higher Judicial posts. The learned Judge fortified himself by observations of their Lordships of the Supreme Court in Pandurangrao v. Andhra Pradesh Public Service Commission, Hyderabad (1).

3. Learned counsel for the appellant in assailing the judgment of the learned Single Judge reiterated these contentions. Learned Advocate General, however, raised a preliminary objection asking us to dismiss the appeal on the ground that the appellant having not applied for recruitment to the service had no sufficient interest in the recruitment in question and, therefore, in exercise of our discretion under Art. 226 of the Constitution we should dismiss the appeal on this ground alone. Learned counsel for the appellant countered this by relying on a letter of the Registrar dated nil, available at page 34 of the paper book, wherein he had conveyed to one Shri Roshanlal Gupta, Advocate, Vice President Bar Association, District Courts, Sriganganagar that the expression “applications are invited for direct recruitment to the Rajasthan Higher Judical Service from Advocates who have practised in the Rajasthan High Court and the Courts subordinate thereto for a period of not less than 7 years” has to be given the same meaning as given to the corresponding expression in the Rules and under the aforesaid Rules practice has to be as an Advocate and not as a Pleader. With the result that the Advocates who have practised as Advocates for 7 years alone were eligible. On the basis of this letter learned counsel contended that even if the appellant were to apply his application was bound to be rejected and, therefore, according to learned counsel, the appellant was entitled to challenge the vires of the Rules inspite of his not having applied for the post. Besides this the learned counsel for the appellant submitted that this objection had not been specifically taken in the writ petition nor was it argued before the learned Single Judge and, therefore, we should not entertain it.

4. Since the objection does not involve any new facts and raises only a legal ground we are inclined to examine it.

5. Rule 3(b) of the Rules defines the term “Court” to mean the High Court of Judicature for Rajasthan. The term “direct recruitment” means the recruitment in the manner prescribed by clause (ii) of rule 8, and the term ‘District Judge’ includes Additional District Judge, Sessions Judge and Additional Sessions Judge. We may read rule 8 which provides for the sources of recruitment:

“Rule 8. Sources of recruitment.—Recruitment to the service shall be made—

(i) by promotion from amongst the members of the Rajasthan Judicial Service or

(ii) by direct recruitment from the advocates who have practised in the Court or courts subordinate thereto for a period of not less than seven years.”

Rule 15 lays down that a candidate for direct recruitment to the service must be a citizen of India and must be an advocate who has practised in the Court or Courts subordinate thereto for a period of not less than seven years. Having carefully considered rules 8(ii) and 15(ii) of the Rules we are convinced that the expression “advocates who have practised in the Court or Courts subordinate thereto for a period of not less than seven years” cannot be restricted to advocates who have practised as Advocates for seven years or that it will not take in a person who has been an Advocate and has precised for not less than seven years though partly as an Advocate and partly as Pleader. Rule 8(ii) or rule 15(ii) for that matter embody two qualifications: (1) that the person should be an Advocate, and (2) that he should have practised for not less than seven years. The practice of seven years need not, in our opinion, be as an Advocate and could partly be as an Advocate and partly as Pleader. From the various clauses of legal practitioners the recruitment is to be from the class of legal practitioners who are Advocates, but how long a person has been an Advocate is not of the essence. What is of the essence is his practice in the Rajasthan High Court or Courts subordinate thereto for a period of not less than seven years, which may be either as an Advocate or as a Pleader. Learned Advocate General submitted, when we put it to him at the time of argument whether this would be a possible interpretation to take, that this was so and the rule is capable of being interpreted both in the way we suggested and as it had been interpretted in the letter of the Registrar. Now even if we were to think that on account of the language of the rule being not clear enough two interpretations are possible, we would be inclined to prefer an interpretation which will be in keeping with the requirement of the Constitution. Article 233 of the Constitution inter alia lays down that a person not already in the service of the Union or of the State shall only be eligible to be appointed as a District Judge, if he has been for not less than seven years an Advocate or a Pleader. Thus the Constitution not only makes both Pleaders and Advocates eligible for appointment but necessarily takes in a person who has practised for not less than seven years partly as a pleader and partly as an Advocate. Now, if we compare and contrast Article 217 of the Constitution, which lays down the qualifications for persons for being appointed as a Judge of the High Court a marked difference in the language will be noticeable in the two Articles regarding the qualifications. Art. 217(2)(b) makes a person who has for atleast 10 years been an Advocate of a High Court in any State or two or more such High Courts in succession qualified for appointment as a Judge of a High Court. Having laid down the qualifications that the minimum period of 10 years as an Advocate is necessary for Appointment as a Judge of the High Court the founding fathers framed Art. 233 differently when for the appointment of District Judges they provided that a person to be appointed as a District Judge should have been an Advocate or Pleader for not less than seven years Rule 8(H) or rule 15(h) of the Rules would have been featured on the pattern of Art. 217 of the Constitution if the intention of the rule making authority were that only a person who has practised for seven years as Advocate should be eligible. There should have been no difficulty in adding the words “as such an Advocate” after the word “practised” in rule 8(ii) or rule 15(H). When the Constitution has made both Advocates and Pleaders eligible for appointment as District Judges provided they have been Advocates or Pleaders for not less than seven years' one expects an unambiguous expression to exclude the practice as Pleaders altogether for the purpose of eligibility under the Rules. In these circumstances we feel constrained to say that the interpretation of the rule as given in the Registrar's letter available at page 34 of the paper book is not acceptable to us.

6. As regards the vires of the rules 8(H) and 15(H) of the Rules on the ground of alleged violation of Article 15 or Art. 233 of the Constitution we find ourselves in thorough agreement with the view taken by the learned Single Judge. The learned Single Judge has referred to the following passage in Pandurangrao's case (1):

“The object of the rule is to recruit suitable and proper persons to the judicial service in the State of Andhra Pradesh with a view to secure fair and efficient administration of justice, and so, there can be no doubt that it would be perfectly competent to the authority concerned to prescribe qualifications for eligibility for appointment to the said service. Knowledge of local laws as well as knowledge of the regional language and adequate experience at the Bar may be prescribed as qualification which the applicants must satisfy before they apply for the post. In that connection, practice in subordinate courts or in the High Court may also be a relevant test to prescribe.”

We agree with the learned Judge that a person who has gained seven years' experience at the Bar in Rajasthan is likely to equip himself with the fair knowledge of local laws as well as knowledge of local dialects and the local conditions so that he will be a suitable person to hold a higher judicial post and would be able to discharge his duties efficiently. Thus there is a reasonable classification for persons who had practised for the requisite number of years in Rajasthan and those who had not so practised. Classification made by the rule making authority is thus not open to question on the ground of discrimination.

7. We also agree with the learned Single Judge that Art. 233(2) of the Constitution only lays down the minimum qualifications that a person for direct recruitment as a District Judge should possess and it is open to the rule making authority under Art. 309 of the Constitution to prescribe additional or higher qualifications if they are found necessary in the interest of the service to be constituted. Besides this we may notice that the definition of the term ‘District Judge’ as given in Art. 236 of the Constitution is wide enough and would include a Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge. The Higher Judicial Service in Rajasthan which under the repealed Rules of 1955 included Civil and Additional Sessions Judge as well in the grade of 500-900, now consist of only District and Sessions Judges and Additional District and Sessions Judges. The ordinary time scale for the District and Sessions Judges and Additional District and Sessions Judges is now 900-50-1000-60-1600-50-1800 (vide Rule 23). Apart from this a person now to be appointed to the service gets a higher start depending on the length of his practice at the Bar and the starting salary in case of persons practising for 12 years or more is Rs. 1180/- In these circumstances when direct recruitment is now made at a higher level with a higher salary and grade it was undoubtedly open to the rule making authority to have made provision for additional qualifications viz., that the person concerned should have practised for a certain number of years in Rajasthan so that he could acquire sufficient knowledge of the local laws, local conditions and the regional language or dialects. We, therefore, do not find any substance in the contention that Rule 8(ii) or rule 15(ii) of the Rules are, in any manner, violative of Art. 233 of the Constitution. As the appellant has not applied for the post, advertised, we are not inclined to grant him any relief even though we have come to the conclusion that the interpretation of the rule as contained in the Registrar's letter available at page 34 of the paper book is not acceptable to us.

8. The appeal has no force and we accordingly hereby dismiss it, but leave the parties to bear their own costs of the appeal.

Daulat Raj Singhvi v. State Of Rajasthan

Summary of Opinion — Kan Singh, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent / Advocate General's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Daulat Raj Singhvi v. State Of Rajasthan

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