PREM NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioners who are all members of the Rajasthan Judicial Service have submitted this application under Article 226 of the Constitution of India against the State of Rajasthan (Respondent No. l), the Hon'ble Chief Justice Shri D. S. Dave Hon'ble Justice I. N. Mondi, Judge High Court Rajasthan and Administrative Judge, High Court Rajasthan, Hon'ble Justice D. M. Bhandari, Judge Rajasthan High Court (Respondents Nos. 2 to 4) and the Rajasthan Public Service Commission through its Chairman praying for a writ of prohibition against the respondents Nos. 2 to 4 from holding interview or selecting or recommending the appointment of candidates for direct judicial appointments to the post of Civil and Additional Sessions Judges, or any other such judicial post to the Governor or declaring the result thereof and further for declaration that the Rajasthan Higher Judicial Service Rules, 1955 (hereinafter called the Rules) are void and illegal. In the alternative it is prayed that the proceedings of the Recruitment Committee for selection of candidates be held to be illegal and be quashed because of non-compliance with the provisions of Rule 10 of the Rules and further the Selection Board be prohibited from filling vacancies in the Higher Judicial Service exceeding one fourth of the vacancies which have fallen vacant during the current year and the result should not be declared till selection from Judicial Service takes place as required by Rule 13 of the Rules and for any other appropriate writ or order.

(2.) ON 9th May, 1955, His Highness the Raj Pramukh of the then (Part-B) State of Rajasthan in exercise of the powers conferred by the proviso to Article 309 of the Constitution, made rules regulating recruitment to posts in, and the condition of service of the persons appointed to the Rajasthan Higher Judicial Service. These rules were first published in Rajasthan Gazette Extra-ordinary Part IV (G) dated 12th May, 1955 in Appointment Department Notification No. F. 21 (3) Apptts. (c)/55. Some of the relevant rules are as under: - Part-I - General R. 1 - Short title and commencement - (1) These rules may be called the Rajasthan Higher Judicial Service Rules, 1935. (2) They shall come into force at once and shall apply to the members of service consisting of District and Sessions Judges and Civil and Additional Sessions Judges. R. 3 - Status of the Service - The Rajasthan Higher Judicial Service is a State Service. R. 4 - Definitions - In these rules unless there is anything repugnant in the subject or context - (b) "court" means the High Court of Judicature for the New State of Rajasthan. (c) "direct recruitment" means recruitment in the manner prescribed by cl. (ii) of sub-rule (1) of R. 7. (e) "member of Service" means a person appointed in a substantive capacity to a post in the cadre of the service under the provisions of these rules or of orders superseded by R. 2; (g) "service" means the Rajasthan Higher Judicial Service. Part II - Cadre R. 6 - Strength of the Service - (1) The strength of the Service and of each class of posts therein shall be determined by the Governor from time to time in consultation with the Court. (2) The permanent strength of the Service and of each class of posts therein shall, until orders varying the same have been passed under sub-rule (1), be as specified in Schdl. I. (3) The Governor may, from time to time and in consultation with the Court, leave unfilled or hold in abeyance any post in the Service without thereby entitling any person to compensation, or create such 'additional temporary or permanent posts in the Service as may be found necessary. Part III - Recruitment R. 7 - Sources of Recruitment - (1) Subject to the other provisions of these rules, recruitment to the Service shall be made to the posts of Civil and Additional Sessions Judges: - (i) by promotion from among the members of the Rajasthan Judical Service; or (ii) by direct recruitment in consultation with the court. (2) Persons eligible for direct recruitment under cl. (ii) of sub-rule (1) of this shall be Advocates or Pleaders of more than seven years; standing. R. 8 - Appointments to the Grade of District and Sessions Judges - All appointments to the grade of District and Sessions Judges shall be made by the Governor in consultation with the Court with due regard to seniority and fitness for such appointment, provided that in making appointments against the posts of (i) Legal Remembran-cer-cum-Law and Judicial Secretary to Government, (ii) Registrar, High Court and (iii) Joint Legal Remembrancer to Government in a temporary capacity, as may be necessary from time to time, the sole criterion shall be the fitness of an officer for such appointment. R. 8-A - Appointments to the Selection Grade posts of District and Sessions Judges - The appointments to the selections grade posts of the District and Sessions Judges shall be made by the Governor, in consultation with the Court, by promotion from amongst officers holding substantively the posts of District and Sessions Judges, on the basis of seniority-cum-merit. (2) The first appointment made in pursuance of sub-rule (1) shall take effect from the 1st day of January, 1961. R. 10 - Number of Appointments to be made - (1) Subject to the provisions of these rules, the number of persons to be recruited at each recruitment from each of the two sources specified in R. 7 and the period (not exceeding three years) for which such recruitment is to be made shall be determined by the Governor. Provided that the number of persons appointed to the Service by direct recruitment shall at no time exceed one-fourth of the total strength of the Service and the number of persons so appointed during any one period of recruitment shall not exceed one-fourth of the total number of vacancies occurring during that period: Amendment vide Notification No. F. 21 (3) Apptts (C)/55 dated 8-10-61. Provided further that if vacancies occurring during any period of recruitment is less than four, the proportion of direct recruits during that period of recruitment may be increased by the Governor so as not to exceed one-half of the total number of such vacancies subject to the condition that the total number of persons appointed to the Service by direct recruitment does not at any time exceed one-fourth of the total sanctioned strength of the Service. (2) If at any recruitment the number of selected direct recruits available for appointment is less than the number of recruits decided by the Governor to be taken from that source, the Governor may increase correspondingly the number of recruits to be taken by promotion from the Rajasthan Judicial Service. Part IV - Procedure for Recruitment by Promotion R. 11 - Experience - No member of the Rajasthan Judicial Service shall be eligible for promotion to the Service unless he has completed seven years of service in that service: Provided that if prior to the constitution of the Rajasthan Judicial Service, he has served as a Judicial Officer or on a post, corresponding to any of the posts encadred in that service, in a Covenanting State or in Rajasthan, the period of such service shall count as service as a member of the Rajasthan Judicial Service. R. 12 - Criteria for Selection - (1) For the purpose of recruitment to the Service by promotion under Cl. (i) of sub-rule (1) of R. 7, the selection shall be made on the basis of merit from among the members of the Rajasthan Judicial Service eligible for such promotion. (2) In selecting candidates for promotion, regard shall be had to the record of every eligible officer as regards the quality of his work and his trustworthiness and fitness for appointment to the Service. No one shall be considered fit unless he is clearly an officer of more than average ability and his integrity is certified. R. 13 - Procedure for Selection - (1) After a decision is taken under R. 10 as to the number of persons to be recruited by promotion, the selection shall be made by a. Selection Committee consisting of the Chief Justice, the Administrative Judge and Judge of the Court nominated by the Chief Justice, from among the eligible members of the Rajasthan Judicial Service. (2) The Selection Committee shall select from among the eligible officers those whom they consider suitable for appointment to the Service. A list of the Officers selected shall then be made in the order of their inter se seniority in the Rajasthan Judicial Service. At the time when a fresh list has to be drawn up, the cases of all eligible officers will again be considered by the Selection Committee on merits. Part-V - Procedure for direct recruitment R. 14 - Age - A candidate for direct recruitment to the Service must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January following the date of selection. R. 16 - Character and Physical fitness - (1) The character of a candidate for direct recruitment must be such as to render him suitable in the opinion of Governor in all respects for appointment to the Service. He must produce a certificate of good character from the District Judge of the District in which he has been practising as lawyer and two such certificates, written not more than six months prior to the date of submission of application to the Court, from two responsible persons not connected with his school, college or university and not related to him. Note - Persons dismissed by the Union Government or by a State Government shall be ineligible for appointment. (2) No person shall be appointed as member of the Service by direct recruitment unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the Service. Before a candidate is finally approved for appointment by direct recruitment, he shall be required to appear before a Medical Board who will examine him and certify him as fit or unfit for appointment to the Service ; provided that a candidate selected from among Judicial officers, who has already been examined and declared fit by a Medical Board in connection with his appointment as a judicial officer shall not be required to appear before a Medical Board again under this sub-rule prescribed by the Governor for the purpose. R. 17 - Notice of Recruitment - Applications for direct recruitment to the Service shall be invited by the Court by publishing a notice to that effect in the Rajasthan Gazette and in such other manner as it may deem fit. R. 21 - Scrutiny of applications and Interviews - (1) The Selection Committee appointed under R. 13 shall scrutinise the applications received by the Court in accordance with the provisions of R. 19 and require such of the eligible candidates as seem best qualified for appointment to the Service under these rules to appear before the Committee for interview at their own cost. (2) In assessing the merits of a candidate, the Selection Committee shall have due regard for his professional ability, knowledge of Hindi written in Devnagri script character, personality, physique and general suitability for appointment to the Service as indicated by his record and interview. R. 22 - Selection - The Selection Committee shall prepare a list of candidates whom they consider suitable for appointment to the Service, in order of merit. Part-VI - Appointments, probation and confirmation R. 23 - Submission of lists to the Governor - The Court shall submit to the Governor two copies each of the two lists of candidates considered suitable for appointment to the Service from the two sources of recruitment as prepared in accordance with RR. 13 and 22. R. 24 - -Appointments - - (1) Subject to the provisions of sub-rule (2) all appointments to posts in the Service shall be made by the Governor on the occurrence of substantive vacancies by taking candidates from the lists prepared under RR. 13 and 22 in the order in which they stand in the respective lists, provided the Governor is satisfied that such candidates are duly qualified for appointment to the service in all respects. The first three vacancies shall be filled from the list prepared under R. 13 and the fourth vacancy shall be filled from the list prepared under R. 22 and so on; Provided that if the number of vacancies to be filled is less than four, the vacancy or vacancies to be filled from the list prepared under R. 13 shall be filled first and the remaining vacancy shall be filled from the list of direct recruits. (2) The Governor may make appointments to fill temporary or officiating vacancies from among persons who are eligible for appointment to the Service by promotion under R. 7 (1) (i) of these rules; provided that, as far as may be, such appointments shall be made from the list prepared under R. 13, and that other members of the Rajasthan Judicial Service shall be considered tor such appointments only after the aforesaid list has been exhausted. R. 25 - Seniority - Subject to the other provisions of these rules, seniority in the date of the order of appointment in a substantive vacancy. Provided the seniority of candidates appointed to the Service shall, in the case of appointment of more persons than one to the Service by an order of the same date, follow the order in which their names have been placed in the list prepared under R. 13 or R. 22, as the case may be, excepting, in the case of appointment by direct recruitment under R. 7 (1), (ii), persons who do not join the Service when a vacancy is offered to them. R. 26 - Probation - All persons appointed to the Service by direct recruitment u/r. 7 (l) (ii) shall be placed on probation for a period of two years. R. 27 - Extension of probation period or removal - (1) If it appears at any time during or at the end of the period of probation that an officer has not made sufficient use of his opportunities or if he has otherwise failed to give satisfaction, the Governor may dispense with his service; Provided that the Governor may, in special cases, extend the period of probation of such officer by a specified period not exceeding one year. (2) An Officer whose services are dispensed with during or at the end of the original or extended period of his probation under subrule (1) shall not be entitled to any compensation. R. 28 - Confirmation - (1) A probationer shall be confirmed in his appointment at the end of the original or extended period of his probation, if the Governor, after consultation with the Court, is satisfied that he is fit for confirmation, (2) All confirmations under this rule shall be notified in the Rajasthan Gazette.

(3.) IT is in the background of the above constitutional provisions that the objections raised on behalf of the petitioners and validity of the impugned rules is to be determined.