Dr. D.Y. Chandrachud, J.

The reference to the Full Bench and the Petitions: The reference to the Full Bench has been made on 16 June 2011 by a Division Bench of this Court. The petition under Article 226 of the Constitution, Sunanda w/o Bhimrao Chaware & Ors. vs. The High Court of Judicature at Bombay, W.P. 1916 of 2011 (Original Writ Petition 1537 of 2011 transferred from Aurangabad Bench)out of which the reference arises, has been instituted by six Assistant Public Prosecutors, who are on full time salaried employment with the Government of Maharashtra. They assert that they are eligible to be appointed as District Judges under Article 233(2) of the Constitution.

2. The Petitioners were appointed as Assistant Public Prosecutors on diverse dates between 26 February 2002 and 23 March 2009. The High Court of Judicature at Bombay issued an advertisement by which applications were invited from eligible candidates for seventeen vacancies in the post of District Judges in the judicial service of the State of Maharashtra in the pay scale of Rs.51550-1230-58930-1380-63070 + dearness allowance and other allowances as admissible under the Rules. The criteria of eligibility among other requirements was to the following effect:

“2) A candidate must be -

(a) a holder of Degree in Law

(b) practising as an Advocate in the High Court or Courts subordinate thereto for not less than seven years on the date of publication of Advertisement and in computing the period during which a candidate has been an Advocate there shall be included any period during which he has held the post of a Public Prosecutor or Government Advocate or Judicial Officer.

Must be working or must have worked as Public Prosecutor or Government Advocate for not less than 7 years in the post or posts on the date of publication of advertisement. In computing the period of 7 years, the period during which the candidate has worked as an Advocate shall also be included.

Provided that a full time salaried Public Prosecutor, Assistant/Additional Public Prosecutor, Law Officer of the Central Government or State Government or of any Public Corporation or Body constituted by Statute, would not be eligible for the post of District Judge.”

(emphasis supplied)

The criteria of eligibility, including the proviso are based on similar provisions governing the appointment of District Judges in Maharashtra Judicial Service Rules, 2008 as emended in 2010.

3. The Petitioners have challenged the proviso, extracted above, on the ground that it is unreasonable and without nexus to the object sought to be achieved. The submission of the Petitioners is that as a result of the proviso, a full time salaried public prosecutor or Assistant Public Prosecutor who is entrusted with the duties of pleading or arguing on behalf of the Government in a court is deprived from competing for the post. This according to them, amounts to a hostile discrimination in violation of Articles 14 and 16 of the Constitution. According to the Petitioners, Article 233 of the Constitution envisages that a person not already in service of the Union of India or of the State shall be eligible to be appointed as a District Judge if he has been, for not less than seven years, an Advocate or Pleader and is recommended for appointment by the High Court. The Petitioners submit that the expression “Advocate and Pleader” is wide enough to include the post of a full time Assistant Public Prosecutor. The Petition was amended to challenge the aforesaid proviso, contained in Chapter III, Rule 5, Column 4 of the Maharashtra Judicial Services Rules, 2008. According to the Petitioners, the provision is contrary to Article 233(2) of the Constitution and the law laid down by the Supreme Court in Sushma Suri vs. Govt. of National Capital Territory of Delhi (1999) 1 SCC 330). The Petitioners have also challenged the corresponding condition in the advertisement published on behalf of the High Court while inviting applications for recru