VERY IMPORTANT POINT
Rules 8(ii) and 15(ii) of the Rajasthan Higher Judicial Services Rules, 1969 requiring that only those Advocates are entitled to be considered for direct recruitment to Rajasthan Higher Judicial Service who have practised in Rajasthan High Court or Courts subordinate thereto for a period of not less than 7 years are ultra vires Articles 14 and 16 of Constitution and are liable to be struck down. However, in the fitness of things, the law decided in this case be declared to be prospective in operation as doctrine of prospective overruling can be applied not only in matters arising under the Constitution but also to the interpretation of ordinary statutes as well.

Headnote:(i) The Rajasthan Higher Judicial Services Rules, 1969-Rules 8(ii) and 15(ii)-Rules requiring that only those Advocates are entitled to be considered for direct recruitment to Rajasthan Higher Judicial Service who have practised in Rajasthan High Court or Courts Subordinate thereto for a period of not less than 7 years-Whether violates Articles 14 and 16 of Constitution (Yes), as Rules are debarring all other Advocates practising outside Rajasthan though within the territory of India)-Section 11 of Rajasthan Judicial Service Rules, 1955 applicable to Subordinate Judicial Service having similar rule irrespective of place of practice -1963(1) SCR 707 and AIR 1961 SC 816 relied-Case law referred-1970 Raj.L.W. 214 (DB) and AIR 1970 Raj. 164 (FB) overruled-Whether doctrine of prospective overruling be invoked in this case? (Yes)-Case law discussed.
       Held : In the present case, the attack to the Rule has been resisted on the sold ground that the classification, confining Advocates practising in the Rajasthan High Court or courts subordinate thereto for being eligible for consideration to Rajasthan Higher Judicial Service, has reasonable nexus that they have knowledge of local laws and regional language. Question is whether, in fact, this ground, exists or not? Rule 11 of the Rajasthan Judicial Service Rules which relates to appointment in subordinate Judicial Service in Rajasthan lays down that any Advocate who has practised in any court throughout the territory of India is eligible for the post of Munsif. For the post of Munsif, knowledge of local law and regional language is much more required. The said Rule 11 further lays down that a candidate must possess a thorough knowledge of Hindi written in Devnagri Script. Thus for recruitment to the post of Munsif, there is no requirement that a person should have knowledge of local laws and regional language. If for appointment is subordinate judicial service, neither there is any requirement of knowledge of local laws nor regional language, we really fail to understand how the same is required for higher judicial service in the very same State, i.e., in the State of Rajasthan. Thus, we find that the ground taken by respondent No. 2, that purpose of framing such a rule is knowledge of local law and regional language in order to stand the test of Article 14 of the Constitution, is fallacious. Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely, supremacy of the Constitution, division of power between the Union and States and existence of an independent judiciary. From Kashmir to Kanyakumari, the country is one and there is no intelligible differentia which distinguishes Advocates practising within the State of Rajasthan and those practising outside Rajasthan but within the territory of India. In the case of Pandurangarao, this Court observed that throughout the country in the curriculum, study of important local laws is generally included apart from general laws, which would meet the requirement of knowledge of important local laws. In that very case, as already stated, it was further observed that for knowledge of local laws, a suitable examination may be conducted which a candidate should pass. The Court thus observed in that case at page 717 which run thus :-
       "It is not clear that the impugned rule can effectively meet the alleged requirement of the knowledge of local laws. If the object intended to be achieved is that the applicant should have adequate knowledge of local laws, the usual and proper course to adopt in that behalf is to prescribe a suitable examination which candidates should pass, or adopt some other effective method. No material has been placed before us to show that the alleged requirement about the knowledge of local laws can be met on the two grounds suggested in support of the validity of the rule. Besides, study of general laws prevailing in the country as a whole, and the study of important local laws are generally included in the curriculum prescribed for the law Degree, and obtaining a Law Degree which would entitle a person to be enrolled as an Advocate, in substance, meets the requirement of the knowledge of important local laws". (Emphasis added)
       The matter may be examined from another angle as a lawyer is required to be well versed with the first principles of law for practising in any court and even local laws are based upon first principles and the requirement can be met either by prescribing a written test incorporating local laws as well or in cases where there is practice of taking interview alone, by putting questions in relation to local laws as well and in that manner knowledge of a person in relation to local law can be tested. The appellant in Civil Appeal No. 6469 of 1998 was interviewed by Committee of Judges of the High Court headed by its Chief Justice which found him fit for appointment to the post of Higher Judicial Service in Rajasthan and made recommendations in his favour but his candidature was rejected by Full Court of the High Court as he was not eligible under the Rules. Thus, we find that none of the two tests enumerated in the case of J. Pandurangarao to sustain validity of Rule on the ground of infraction of Article 14 of the Constitution is available as it could not be shown that the classification on which the Rules were founded was based on an intelligible differentia and the same had a reasonable relation to the object sought to be achieved in framing it. The view taken in the case of Pandurangarao is on the same lines as decided by earlier Constitution Bench of this Court in the case of Rameshwar Dayal v. State of Punjab & Ors. in which the appointment of five persons in Punjab Higher Judicial Service was challenged before the Punjab High Court by filing writ application on the ground that these persons had not practised for a period of seven years in the Punjab High Court but out of the period of seven years, for few years, they had practised in Lahore High Court before partition of the country and after partition, the Punjab High Court. The writ application was dismissed on the ground that for reckoning the period of seven years, the period of practice in both the High Courts shall be counted for the purpose of Article 233 of the Constitution and against said judgment, when appeal was brought to this Court, judgment of the High Court was upheld and it was laid down that for reckoning seven years standing of a person at Bar period of practice in both the High Courts shall be counted. (Paras 14, 15 and 16)
       Distinguishing case law held : It has been observed that there should be no interference with the law laid down in the old decisions merely on the ground that different view is possible but the Court would be justified in interfering if decision is manifestly wrong or unfair. In the present case, we have clearly held that the Rules are violative of Articles 14 and 16 of the Constitution, as such Division Bench and Full Bench decisions of Rajasthan High Court are manifestly wrong and if the law laid down therein is approved, the same would be unfair to members of the Bar practising in all the courts throughout the country, excepting the State of Rajasthan. Thus, we have no option but to hold that Rules 8(ii) and 15(ii) are ultra vires Articles 14 and 16 of the Constitution and liable to be struck down. (Para 18)
       Held further that the doctrine of prospective overruling can be invoked only in matters arising under the Constitution and the same can be applied only by this Court in its discretion to be moulded in accordance with the justice of the cause or matter before it. Accepting the lead given in the above decision, this Court has since extended the doctrine to the interpretation of Ordinary statues as well. In the cases of Waman Rao & Ors. v. Union of India & Ors., (1981) 2 SCC 362, Atam Prakash v. State of Haryana & Ors., (1986) 2 SCC 249, Orissa Cement Ltd. v. State of Orissa & Ors., 1991 Supp. (1) SCC 430, Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588 and Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors. (1993) 4 SCC 727 the device of prospective overruling was resorted to even in the case of Ordinary statutes. We find in the fitness of things, the law decided in this case be declared to be prospective in operation. (Paras 19 and 20)
       (ii) Constitution of India-Article 136-Civil Appeal 6469 of 1998 under-Appellant Ganga Ram Moolchandani though found eligible for Rajasthan Higher Judicial Service by Committee but could not be appointed due to Rules 8(ii) and 15(ii)-Now when rules are struck down and posts are vacant should be he appointed? (Yes)-Appeal allowed accordingly.
       Held : We feel it would be just and proper to direct the High Court to recommend his name to the Governor for appointment to Rajasthan Higher Judicial Service against one of the existing vacancies as according to the stand taken by the High Court, posts are still vacant. (Para 21)
       In the result, Civil Appeal No. 6469 of 1998 is allowed, the impugned judgment passed by the High Court upholding the Rules is set aside and Rules 8(ii) and 15(ii) are struck down being violative of Articles 14 and 16 of the Constitution. It is made clear that this judgment will not affect any appointment made prior to this date under the Rules which have been found to be invalid hereinabove. The High Court would be well advised to take up the process of selection, already started, de novo in accordance with this judgment and will now recommend name of the appellant-Ganga Ram Moolchandani to the Governor of Rajasthan for making appointment to Rajasthan Higher Judicial Service against aone of the existing vacancies. (Para 24)
       (iii) Constitution of India-Article 136-Appellant in C.A. No. 2411 of 1999-A full time employee as Deputy District Attorney in State of Haryana-Applied but not called for interview-Though appellant s service was to act and plead on behalf of Haryana Government in a Court of law as an advocate and may be treated as equivalent to a practising advocate but High Court refused to grant any relief in view of the fact that selected candidates had joined and appellant was yet to he interviewed and it was not certain that he may be selected in the interview so Court refused to quash entire selection process-With direction to consider his case in future-Whether correct? (Yes) result-Appeal dismissed accordingly.
       Held : So far appellant in Civil Appeal No. 2411 of 1999 is concerned, the High Court has in view of decision of this Court in Civil Appeal No. 3021/97 Sushma Suri v. Govt. of National Capital Territory of Delhi & Anr. declined to grant relief in his favour. Learned counsel appearing on behalf of the appellant could not point out any error in the aforesaid judgment rendered by the High Court. Therefore, it is not possible to grant any relief to him. We may, however, observe that the High Court would process the applications of the candidates like this appellant for direct recruitment to the Rajasthan Higher Judicial Service in future as this appellant has been found eligible to be considered. (Para 23)
       Held consequently : Civil Appeal No. 2411 of 1999 is dismissed subject to the observations above. In the circumstances, there will be no order as to costs. (Para 24)
       (iv) Constitution of India-Article 136-Civil Appeal No. 722 of 1999-Appellant found eligible but selection committee did not find him suitable-His grievance of relaxation in the minimum marks of two other candidates de hors the rules, prayed for setting aside entire selection process-No such relaxation was found and High Court dismissed his case by passing strictures and imposition of costs-Whether strictures be expunged and imposition of costs be set aside? (Yes)-Appeal allowed to that extent.
       Held : In Civil Appeal No. 722 of 1999, the only ground of attack is the strictures passed by the High Court against the appellant and imposition of costs. In the facts and circumstances of the case, we are of the view that it will be just and proper to expunge the remarks against the appellant from the impugned judgment and to upset the order awarding costs. (Para 23)
       Held consequently : Civil Appeal No. 722 of 1999 is allowed, the strictures passed in the impugned judgment against the appellant are expunged and the order, awarding costs upon him, is set aside. (Para 24)

JUDGMENT

B.N. Agrawal, J.-These appeals by special leave are against five judges Full Bench judgment of Rajasthan High Court passed in three different writ applications whereby by a majority of 3:2, the same have been dismissed. In the writ petition out of which Civil Appeal No. 6469 of 1998 arises, the selection of respondent Nos. 3 to 12 who were appointed to the cadre of Rajasthan Higher Judicial Service by order dated 20th April, 1998 pursuant to advertisement dated 21st December, 1996 and recommendation of the High Court has been assailed by challenging the validity of Rules 8(ii) and 15(ii) of The Rajasthan Higher Judicial Service Rules, 1969 (hereinafter referred to as the Rules ) making only those advocates eligible for consideration to the post of Rajasthan Higher Judicial Service who are practising in the Rajasthan High Court and courts subordinate thereto, on grounds, inter alia, that the same were violative of Fundamental Right, guaranteed to a citizen of India, enshrined under Articles 14 and 16 of the Constitution. In the writ petition, out of which Civil Appeal No. 2411 of 1999 arises, apart from challenging validity of the said rules on the aforesaid grounds, the decision of the High Court on its administrative side was assailed whereby candidature of the writ petitioner was not considered as he was full time-salaried Deputy District Attorney in the State of Haryana and being in State service was not eligible for consideration under Article 233 of the Constitution, apart from the ground that he was not practising in any such court. In the third writ petition, out of which Civil Appeal No. 722 of 1999 arises, the selection was challenged on the ground that the same was made in violation of the Rules.

2. The High Court issued an advertisement on 21st December, 1996 inviting applications for filling up eleven posts in the cadre of Rajasthan Higher Judicial Service to be filled up in terms of the Rules. The appellant in Civil Appeal No. 6469 of 1998, who was a practising Advocate in the District Court, Bareilly, a Court subordinate to the High Court of Judicature at Allahabad, applied in response to the said advertisement considering himself to be eligible though the said advertisement specifically provided that a candidate must have practised for seven years in Rajasthan High Court or courts subordinate thereto. He submitted his application through the District Judge, Bareilly. His application was processed by the Rajasthan High Court and he was called for interview. After interview, the Selection Committee found him meritorious and placed his name in the proposed select list. However, the Full Court, in its meeting held on 19th December, 1997, did not recommend the name of the appellant as it was found to be de hors the Rules not being found eligible for the reason that he had not practised for seven years in the High Court of Rajasthan or the Courts subordinate thereto, which necessitated filing of writ application before the High Court.

3. Appellant in Civil Appeal No. 2411 of 1999 had applied in response to the said advertisement but he was not called for interview and his candidature was not considered by the High Court on the ground that he was in the service of the State of Haryana, having been appointed there as a full-time salaried Deputy District Attorney. According to this appellant, the period spent by him as Deputy District Attorney should have been treated to be period spent as a practising Advocate.

4. Appellant in Civil Appeal No. 722 of 1999 is a practising Advocate in the Courts at Deeg (District Bharatpur) which is a court subordinate to the Rajasthan High Court. He had applied for the post in response to the said advertisement. He was interviewed. The Selection Committee did not find him suitable for appointment. His grievance is that two candidates, who had duly been selected and appointed, viz., Shri Seeta Ram and Shri Ram Singh Meena had been selected by allowing relaxation in the minimum marks

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2001 Supreme(SC) 941

Cases Referred (19)