CHHANGANI, J—Munni Lal Garg of Karanpur has filed this petitioner under Article 226 of the Constitution of India praying for an appropriate writ, order or direction to the effect that (i) rule 15(ii) of the Rajasthan Higher Judicial Service Rules, 1939 (hereinafter referred to as the Rules) be declared ultra vires and(ii) respondents Nos. 1 & 2, i.e. the State of Rajasthan and the High Court of Judicature for Rajasthan, be directed not to proceed with the making of the selections for recruitment to the Higher Judicial Service from amongst the advocates. A prayer for quashing the proceedings for the selections which have already been undertaken has also been made.

2. The relevant facts are these—

The petitioner is an Advocate practising at Shri Karanpur, District Ganga-nagar. After passing his LL .B. Examination in the year 1954 he was enrolled as a pleader by the Rajasthan High Court in the year 1954. He was later on enrolled as an advocate of the Rajasthan High Court under the Advocates Act in the year 1962. The Rules came into force on 21-1-59. Rule 8 thereof provides for for two sources of recruitment:

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

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

Rule 15 prescribes the qualifications for a candidate for direct recruitment to the service; sub-rule (ii) states that a candidate must be an advocate who has practised in the High Court or court subordinate thereto for a period of not less than seven years.

3. In accordance with these rules, the Registrar, Rajasthan High Court, Jodhpur, invited applications from advocates who had practised in the Rajasthan High Court or courts subordinate thereto for a period not less than seven years and who were otherwise eligible for appointment to fill in six vacancies by direct recruitment. After the issue of a notification by the Registrar, Shri Roshan Lal Gupta, Vice-President Bar Association, Shri Ganganagar, moved the High Court of Rajasthan for a clarification of the notification, whereupon the Registrar, vide his letter No.A (ii)/l/69/(ii)/7515 dated 19-4-69 informed him that the period of practice of seven years prescribed in the Rules meant practice as an advocate and not as a pleader.

4. The petitioner, who was an advocate and who had more than seven years of practice, though not as an advocate but partly as an advocate and partly as a pleader, considering the interpretation of the rule by the Registrar as incorrect, submitted an application for appointment to the Higher Judicial Service. His grievance is that the High Court did not call him for an interview on the ground that he had not put in seven years practice as an advocate even though the total period of his practice as an advocate and as a pleader exceeded seven years. He, therefore, filed the present writ petition on the following grounds:

(1) That rule 15(ii) of the Rajasthan Higher Judicial Service Rules, 1959 and the notice of the Registrar inviting applications are ultra vires Articles 14 & 233 of the Constitution of India. It has been averred that although under Art. 233(2) of the Constitution a person who has to his credit seven years practice either as an advocate or as a pleader is eligible for appointment to the post of District Judge, rule 15(ii) requires that a candidate for direct recruitment must be an advocate who has practised in the High Court or courts subordinate thereto for a period of not less than seven years and thus a person who has, to his credit, seven years practice as a pleader, has been rendered ineligible for applying for the post of District Judge in terms of the Rules. It has further been stated that rule 15(ii) of the Rules is ex-facie ultra vires of Article 233 of the Constitution of India and if, allowed to stand, will result in denying the petitioner an opportunity of being considered for appointment to the

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