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2008 Supreme(Kar) 344
2008 (3) KLO 2471 (DB)
IN THE HIGH COURT OF KARNATAKA
Cyriac Joseph, CJ and B.S. Patil, J.
Writ Petition No.7352 of 2007(S-RES)
Smt. C.V. Chitra and Others - Petitioners
Vs.
State of Karnataka and Others - Respondents
Decided on 16-6-2008
Petitioners: Sri P.S. Rajagopal, Sr. Adv.
Respondents: Sri B. Srinivasa Gowda, Govt. Sri Naganand, Sr. Adv. for M/s. Sundarswamy Ramdas and Anand, Advs.
Headnote:LABOUR & SERVICES - Appointment: [Cyriac Joseph, C.J. and B.S.Patil,JJ] Recruitment to pose of Civil Judge (Jr.Division) -Eligibility - Karnataka Judicial Services (Recruitment) Rules, 2004, Rule 4 - Karnataka rules prescribing enrolment as Advocate as an essential qualification and doing away with experience as standing Advocate - Held, It is not arbitrary or illegal. Requirement of enrolment as Advocate is different from requirement of having standing as an advocate and, deletion of criterion of having standing at Bar cannot be interpreted as having deleted criterion of enrolment as an advocate. Such criterion prescribed in rules is not invalid.
LABOUR & SERVICES - Appointment: [Cyriac Joseph, C.J. and B.S.Patil,JJ] Appointment of Civil Judges - Karnataka Judicial Services (Recruitment) Rules, 2004, Rule 4 - Karnataka State Civil Services Act, (14 of 1989), Sections 8,3(2)(a) - Validity of the Rules - Held, Prior publication of rules inviting objections, not required under Article 234. Nor can such requirement be read in by resorting to any legislative enactments. Omission to specify date on or after which draft rules will be taken into consideration will not vitiate rules.
LABOUR & SERVICES - Appointment: [Cyriac Joseph, C.J. & B.S.Patil, J] Appointment to judicial service - Exercise of power under Article 234 of Constitution of India - Held, It is clear from Article 234 that Governor of the State has power to make rules regulating appointments to the judicial service after consultation with the State Public Service Commission and with the High Court. The impugned rules are made by the Governor in exercise of powers conferred under Articles. 233 and 234 of the Constitution. Though the impugned Rules also make reference to the proviso to Article 309 of the Constitution, either Article 309 nor the provisions of Karnataka State Civil Service Act, 1978, can regulate the exercise to be made by the Governor in framing the rules for recruitment in this connection. It is made clear in the opening sentence itself that power conferred by Article 309 is subject to the other provisions of the Constitution. For example, Article 187 deals with the secretarial staff of the State Legislature, Article 146 (2) relates to the officers of the Supreme Court and Article 148(5) deals with the person serving in Indian Audit and Accounts Department. In these cases, Article 309 of the Constitution has no application. Likewise, for rules to be framed regulating recruitment of judicial officers (Civil Judge) (Jr.Dn.) as provided under Article 234 of the Constitution, the provisions contained under Article 309 have no application. Neither will Section 3(2)(a) read with Section 8 of Karnataka State Civil Services Act, 1978, Section 23 of the Karnataka General Clauses Act, 1899 have any bearing on power exercised under Article 234.
B.S. Patil, J.
1. Petitioners are all employees of the High Court of Karnataka. They are the applicants for the post of Civil Judge (Junior Division). Petitioners have presented this writ petition challenging the communication dated 01.03.2007 issued to them individually rejecting their applications on the ground that they were not eligible to apply for the post as per the Karnataka Judicial Services (Remruitment) Rules, 2004) and the Notification dated 01.04.2006 calling for applications, according to which enrollment as Advocate is an essential qualification. The applicants have also challenged the validity of Recruitment Rules, 2004. Insofar as they require that enrollment as Advocate is an essential qualification for recruitment to the post of Civil Judge (Junior Division). They have further sought for either quashing the Notification advertising the posts and calling for applications or a direction to the respondents to consider their applications without insisting on the requirement of enrollment as Advocate.
2. While admitting the writ petition, an interim order was passed on 30.5.2007 permitting the petitioners to appear in the written examination subject to further orders to be passed in the case. It was also made clear that the petitioners will not be entitled to plead equity for having appeared in the written examination. Though initially eleven persons joined together to file this writ petition, as petitioners 3 to 9 and 11 did not pass the written examination, the writ petition survives only in respect of petitioners 1,2 and 10, who have passed the written examination.
3. The facts relevant for the purpose of appreciating the questions raised in this writ petition, stated in nutshell, are that the recruitment to the post of Civil Judge (Jr.Dn.) earlier known as Munsiffs was previously regulated by the Karnataka Judicial Services (Recruitment) Rules, 1983. The minimum qualification as stipulated in 1983 Rules was that the applicant must be holder of a degree in Law or equivalent qualification and must on the last date fixed for submission of application be : (a) practising as an Advocate and must have so practised for not less than four years as on such date; or (b) working as a Senior Assistant Public Prosecutor or as an Assistant Public Prosecutor in the Department of Prosecutions and must have so worked for not less than four years as on such date.
4. The First National Judicial pay Commission headed by Hon’ble Mr. Justice K. Jagannatha Shetty, Former Judge, Supreme Court of India, in its report dated 11.11.1999 recommended. Certain changes in the qualifications for appointment as Civil Judge (Jr.Dn.) Paragraphs 8.31 to 8.36 of the said report which have bearing on the question in issue in this writ petition can be usefully extracted as under:-
“8.31 In the present system of legal education of 3 years or 5 years, Law Practice is one of the subjects prescribed for the students. Particularly in the curriculum under the present 5 years Law Degree course, the students have to attend Court compulsorily to get themselves educated in the practical training in Court craft.
8.32. It would be, therefore, futile to prescribe three years practice as an Advocate to have intimate knowledge of the Court work as a condition for recruitment to the cadre of Civil Judges (Junior Division).
8.34. Further, in our opinion 3 years standing at the Bar as the minimum qualification for entry into the judicial service may be wholly unnecessary and uncalled for in view of the Commission’s recommendations on Institutional training for the selected candidates. Attention of the concerned authorities is invited to the report of the Commission on judicial education and training and in particular the broad themes of the curriculum for induction training. It includes among other things, practical training through field placement. The Commission has recommended the induction training course for about one year by qualified trainers.
8.35. If
