IMPORTANT POINT
Haryana Superior Judicial Service--Selection--Posts of Additional District & Sessions Judges--Validity of the process of selection--Excessive marks allocated for interview--No hard and fast rule which provides any fixed percentage of marks for interview as against the written test--It is primarily the prerogative of the employer, though the allocation should be within reasonable limits not to provide an arbitrary lever to the selection body to exercise the discretion in an arbitrary manner and completely nullify the impact of merit achieved by the candidates in the written test--There is no allegation of bias, favouritism--No legal or factual basis to interfere in the selection .
Haryana Superior Judicial Service--Candidates selected/appointed as ADJs from the Fast Track Courts--Fast Track Court Officers have undergone the process of selection twice initially at the time of their recruitment as ad hoc Fast Track Court Presiding Officers and subsequently, at the time of their selection as regular ADJs--They have stood the test of merit and competence- Appointment of Fast Track Court Judges by a process of absorption after further examination and selection contained in the recommendation of the Selection Committee , affirmed.
Government Pleaders/Public Prosecutors and Law Officers hold public office--Law Officer cannot be termed as an Advocate or a pleader being a regular government servant--Law Officer in whole time employment of the Central/State Governments ceases to remain a lawyer by virtue of such appointment and thus ineligible for appointment to the judicial officer.

Headnote:(A) Constitution of India, 1950, Art.233(2)--Constitution of India, 1950, Art.16 & 226--Superior Judicial Service Rules, 2007, Rule 6 (1) (C)--Haryana Superior Judicial Service--Selection--Posts of Additional District & Sessions Judges--Validity of the process of selection--Only ground urged to challenge the selection process is the alleged excessive marks allocated for interview which is said to have nullified the merit in the written test and has the capacity of converting overall "merit" into "demerit" and "demerit" into "merit--Marks for written test and viva-voce are statutorily provided. Rule 7 of the Recruitment Rules prescribes procedure for direct recruitment--What is sought to be projected is the excessive allocation of marks for viva-voce i.e. undue weightage to interview, thus, providing discretion to the interviewing body to award marks in the interview to nullify the impact of merit in the written test. Rule 7 is not under challenge in any of the writ petitions--Criteria laid down under Rule 7 was not introduced during the process of selection, rather was in existence since the framing of Rules i.e. 10.1.2007--The rules are duly notified and also referred to in the advertisement notification in response to which the petitioners submitted their applications for selection--Petitioners had the notice and knowledge of the selection criteria and knowing fully well they participated in the process. Now after having remained unsuccessful, the criteria is sought to be assailed on the ground of arbitrariness--There is no hard and fast rule which inter-alia provides any fixed percentage of marks for interview as against the written test--It is primarily the prerogative of the employer, though the allocation should be within reasonable limits not to provide an arbitrary lever to the selection body to exercise the discretion in an arbitrary manner and completely nullify the impact of merit achieved by the candidates in the written test--There is no allegation of bias, favouritism in general or in any specific case--Allegations are casual in nature without in any manner establishing a case of bias or arbitrary exercise by the selection body--Interview has been held by committee comprising of five Honble judges of the High Court--No motive could be attributed nor there is any such averment in any of the writ petitions--No legal or factual basis to interfere in the selection on this ground. (Para 9 & 11)
       (B) Constitution of India, 1950, Art.233(2)--Haryana Superior Judicial Service Rules, 2007, R.5, 6 and 11--Haryana Additional District and Sessions Judge (Ad hoc Recruitment and Conditions of Service) Rules, 2001--Selection--Posts of Additional District & Sessions Judges--Candidates selected/appointed as ADJs from the Fast Track Courts--Ineligibility of the candidates i.e. Presiding Officers of Fast Track Courts--Appointment/Absorption of the Presiding Officers of the Fast Track Courts in the State of Haryana against the quota of direct recruits in the Haryana Superior Judicial Service is other issue which has fallen for consideration--None of the petitioners challenged the legality, fairness and validity of the criteria adopted for selection of fast track officers against the posts of ADJ--Article 233 of the Constitution of India makes a provision for appointment of the Additional District Judges (ADJs) from two sources- (a)By promotion from members of Judicial Service and (b) by recruitment from amongst the Advocates or pleaders having seven years practice at the Bar and who is not a member of a service under the State or the Union and on the recommendations of the High--Fast Track Court judges have been appointed under a Scheme formulated by the Government of India on the recommendations of the 11th Finance Commission--The validity of the Scheme has been upheld--Fast Track Court Officers have undergone the process of selection twice initially at the time of their recruitment as ad hoc Fast Track Court Presiding Officers and subsequently, at the time of their selection as regular ADJs--They have stood the test of merit and competence--None of the petitioners belong to the Category of these Fast Track Officers and thus their locus to agitate this issue itself is under cloud--Appointment of Fast Track Court Judges by a process of absorption after further examination and selection contained in the recommendation of the Selection Committee, affirmed.
        (Para 11, 12 , 13 & 21 to 25)
       (C) Constitution of India, 1950, Art.233(2)--Haryana Superior Judicial Service Rules, 2007, R.5, 6 and 11--Advocates Act, S.49--Haryana State Prosecution Legal Service (Group C) Rules, 1979 , Rule 27--Selection--Posts of Additional District & Sessions Judges--Eligibility of Government Attorneys, Public Prosecutors--Qualification prescribed for the posts in question was that a person should be duly enrolled as an Advocate and has practiced for a period not less than seven years as on the date of notification i.e. 18.5.2007--Ineligibility of Law Officers who have been selected and appointed as ADJs--Law Officer in whole time employment of the Central/State Governments ceases to remain a lawyer by virtue of such appointment and thus ineligible for appointment to the judicial officer--It is contended that Article 233 of the Constitution of India requires that person should be an Advocate or a pleader at the time of his appointment and thus, a Law Officer cannot be termed as an Advocate or a pleader being a regular government servant--Government Pleaders/Public Prosecutors and Law Officers hold public office--Law Officer cannot be termed as an Advocate or a pleader being a regular government servant--Selections/appointments of respondents no.9, 12, 13, 15 and 18 as Additional District and Sessions Judges, quashed.
        (Para 46 & 91)
       (D) Constitution of India, 1950, Art.233(2)--Haryana Superior Judicial Service Rules, 2007, R.18 & 31--Selection--Posts of Additional District & Sessions Judges--Claim of candidates recommended, but not appointed, including those next to appointees in the merit--Petitioners are in the waiting list at Sr.Nos.18 and 17, respectively in the General Category--These petitioners are claiming their right to appointment on the following grounds:-(i)Against the six reserved category vacancies (4 Scheduled Castes and 2Backward Classes) recommended by the High Court to the Government for de-reservation and consequential appointment of the General Category candidates--Petitioners are the recommendees for such appointment;(ii)Against the vacancies fallen vacant or added to the cadre of service till the next selection; (iii)One vacancy fallen vacant on account of resignation of "J" and (iv)One unfilled vacancy of the General Category--Recommendation of the High Court for de-Reservation of the reserved vacancies in larger public interest should not have been lightly brushed aside by the Government -Matter regarding de-reservation of the six vacancies, particularly, two vacancies of the Backward Classes needs re-consideration by the Government--Ist para of Government instructions only prohibit de-reservation of Scheduled Caste and Scheduled Tribes vacancies whereas there is no government instruction or norm/rule which prohibits de-reservation of Backward Class vacancies and in view of the clear mandate of Rule 31 for relaxation of the rules, it was not proper on the part of the Government to have declined the request for de-reservation of at least Backward Class vacancies. It has also been pleaded that reserved vacancies could not be filled up despite advertisements issued at earlier occasions as well--Thus, it would have been prudent for the Government to have accepted the recommendation of the High Court for de-reservation in public interest--Order dated 22.9.2008 rejecting the request of the High Court for de-reservation of six vacancies (four Scheduled Caste, 2 Backward Classes) is quashed--Matter is remitted back to the Government to re-consider the request of the High Court for de-reservation in relaxation of rules by the competent authority empowered under the Government instructions dated 7.9.2008 and Rule 31 of the Haryana Superior Judicial Service Rules, 2007--If on such re-consideration, the State decides to de-reserve the vacancies, candidates recommended by the High Court vide its recommendation letter dated 25.4.2008, shall be appointed. (Paras 85, 86 & 91)
       (E) Constitution of India, 1950, Art.233(2)--Words & Phrases--Expression "the service" means only Judicial Service and the recruitment to the posts of District Judges could only be either from Judicial Service i.e. from the strength of cadre of Subordinate Judicial officers or from the Advocates with at least seven years of practice at the Bar. (Para 73)
       (F) Civil Procedure Code, 1908, S.2(7)--"Government Pleader" includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader--It is now a settled proposition of law that Government Pleaders/Public Prosecutors and Law Officers hold public office--Expression "the service" envisaged in Article 233(2) of the Constitution, means a Judicial Service. (Para 42 , 46 & 50)
       (G) Constitution of India, 1950, Art.233(2)--Haryana Superior Judicial Service Rules, 2007, R.18 & 31--Selection--Posts of Additional District & Sessions Judges--Mere fact that expression "the service" in Article 233 (2) of the Constitution of India has been interpreted by the Honble Supreme Court as Judicial Service, its corollary cannot be that the Members of other services become eligible for appointment to the Judicial Service--Only possible interpretation which can be given to Article 233 of the Constitution is that the recruitment is from two sources: (i) a Member of Subordinate Judicial Service (Civil Judge, Sr. Division) and (ii) from the Advocates/Pleaders with at least seven years of practice at the Bar. Even though expression "service" occurring in Article 233 (2) of the Constitution of India does not speak of the "Judicial Service", however, a conjoint reading of clause (1) of Article 233 and Articles 234, 235 and 236 under Chapter IV of Constitution of India permit only one inference i.e. Judicial Service--Since under this Chapter recruitment is confined only to Judicial Service and except from the Judicial Service, no other service can be brought within the purview of Article 233 (2) of the Constitution--Expression "judicial service" defined in Articles 233 and 236 (b) only strengthen this view. (Para 73)

Judgment

Permod Kohli, J.

1. District Judiciary is the foundation of the judicial system upon which the whole edifice of the judicial institutions stands. Judiciary is the bulwark of the democratic system in India and reckons indubitably as the most potent institution in the triad, the executive and legislative being the other two pillars under the constitutional scheme. The selection/appointment to the Subordinate Judiciary thus assumes a great significance in the administration of justice. The administration of justice in turn depends upon the fairness of the appointments of the meritorious candidates necessary to keep and strengthen the faith in the judicial system. No doubt the appointments to any service should be fair and on merits and this is particularly so in case of judicial appointments. The reverence reposed in the judicial system makes it imperative that judicial appointments obtain a close scrutiny to dispel even the remotest apprehension in the minds of consumers of justice about quality and legality of the selection process. What to say of a common man who often approaches the courts for protection of their civil and constitutional rights, even the State some times seeks not only the advice and counselling from the courts, particularly, the higher judiciary, but invokes the jurisdiction of the courts for remedying any action of its own statutory and other authorities. The complexity of the judicial functions imposes an onerous duty upon the courts in administration of justice, be it violation of fundamental rights, civil rights, disputes relating to property, matrimonial and host of other areas. Thus, it is essential that the judicial appointments must undergo the toughest test of scrutiny, not only to retain the faith reposed in the judicial system, but also to imbibe it further.

2. Judicial appointments to the middle rung of the judiciary below the High Court, called the superior judiciary is under scrutiny in the present bunch of writ petitions. Most of the issues raised are common in all these writ petitions; so is the nature of defence. Wherever the additional grounds of challenge are raised, we will advert to the same at the appropriate stage. In some of the writ petitions, the prayers made are for consideration of the candidature of the writ petitioners without challenging the selection of the private respondents.

3. Through the medium of advertisement dated 18.5.2007, the process for selection was set in motion by inviting applications for the notified posts of Additional District & Sessions Judges (hereinafter referred to as "ADJ") in the Haryana Superior Judicial Service by way of direct recruitment on the basis of a competitive examination envisaged under rule 6(1)(C) of Haryana Superior Judicial Service Rules, 2007 . 22 posts were advertised for selection/appointment for the General and Reserved categories. Out of 22 posts, 14 posts were meant for General Category, 5 for Scheduled Castes and 3 for Backward Classes. Eligible candidates within the age limit of 35 to 45 years as on 1.1.2007 possessing the requisite qualifications could only apply. Qualification prescribed for the posts in question was that a person should be duly enrolled as an Advocate and has practiced for a period not less than seven years as on the date of notification i.e. 18.5.2007. Last date for making application was fixed as on 15.6.2007.

The requirement of applications to be made strictly in the prescribed format was made part of the advertisement notification. The mode and method of selection were written examination comprising of 750 marks and viva-voce with 250 marks. Minimum qualifying marks in the written test prescribed under the notification were 40% in each paper and 50% in aggregate for the General Category and 45% in aggregate for the Scheduled Castes/Backward Class Category candidates. Achieving minimum percentage of marks in the written examination was prescribed for pass percentage, reserving right with the High C

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2010 Supreme(P&H) 1711

PUNJAB & HARYANA HIGH COURTPermod Kohli and K.Kannan JJ.Keshav KaushikVersusState Of HaryanaCWP No. 9157 of 2008,Decided On : MAY 18, 2010

Cases Referred (11)

PUNJAB & HARYANA HIGH COURT
Permod Kohli and K.Kannan JJ.
Keshav Kaushik
Versus
State Of Haryana
CWP No. 9157 of 2008,
Decided On : MAY 18, 2010