Y. D. Shukla vs High Court of Judicature of M. P.

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2008 Supreme(MP) 556

2008(2) JLJ 270
A.K. Patnaik, C.J. and Sanjay Yadav, J.
Y.D. Shukla and others v. High Court of Judicature of M.P. and another
Writ Petition(S) No.6511 of 2007 (Jabalpur);
Decided on 29.4.2008.

Subject

Judgement - CONSTITUTIONAL LAW

Act Referred

CONSTITUTION OF INDIA : Art.14, Art.16, Art.233
MADHYA PRADESH UCHCHATAR NYAYIK SEWA BHARTI TATHA SEWA SHARTEN NIYAM : R.5(1)

Headnote

Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994 (M.P.) -- R.5(1), proviso II (as amended in 2005) -- Constitution of India -- Arts. 14, 16, 233 and 235 -- right of Civil Judges (Senior Division) to the post of District Judge -- affected by the second proviso to R.5( 1) -- it is against the equal opportunity of public employment provided under Arts. 14 and 16 -- it is ultravires.

Held : Experience during the last two years has shown that not all Civil Judges (Senior Division) can compete in such limited competitive examination which comprises of a written test. Having given up the regular college education long back and not used to writing examinations for several years, Civil Judges (Senior Division) may not be able to successfully compete with other Civil Judges (Senior Division) in a limited competitive written examination for promotion to the posts of District Judges (Entry Level) although they may be otherwise suitable and meritorious for such promotion to the post of District Judge (Entry Level) on the basis of their performance as Civil Judges (Senior Division). Thus, the right of such Civil Judges (Senior Division) to be considered for promotion to the post of District Judge (Entry Level) to equality and equal opportunity in the matters of public employment guaranteed under Arts. 14 and 16 of the Constitution is affected by the impugned proviso .... The impugned proviso altogether prevents the consideration of Civil Judges (Senior Division) on the basis of merit-cum-seniority for promotion to the posts of District Judges (Entry Level) till the attainment of the required percentages in rule 5(1) of the..1994 Rules, as amended.

For the aforesaid reasons, we declare the impugned proviso to rule 5(1) of the 1994 Rules, providing that recruitment to the posts shall be made on the basis of vacancies available till attainment of required percentage as ultra vires Arts. 14, 16,233 and 235 of the Constitution, but we make it clear that this judgment will not affect promotions and recruitments, which have already been made. (2002)4 SCC 247, AIR 1993 SC 477 and (2006)9 SCC 507 followed. AIR 1991 SC 382, (1999)5 SCC 624, AIR 2001 SC 2102 and (2008)3 SCC 529 distinguished. [Paras 21 & 22

       mPpre U;kf;d lsok ¼HkrhZ rFkk lsok ‘krsZa½ fu;e] 1994 ¼e-iz-½ && fu-5¼1½] f}rh; ijarqd ¼lu~ 2005 esa ;Fkk la‘kksf/kr½ && Hkkjr dk lafo/kku && vuq-14] 16] 233 rFkk 235 && ftyk U;k;k/kh‘k ds in ij flfoy U;k;k/kh‘kksa ¼T;s"B Js.kh½ dk vf/kdkj && fu-5¼1½ ds f}rh; ijarqd ls izHkkfor && ;g vuqPNsn 14 rFkk 16 ds v/khu micaf/kr yksd fu;kstu ds leku volj ds fo:) gS && vf/kdkjkrhr gSA

       xr nks o"kZ ds vuqHko ls nf‘kZr gqvk gS fd lHkh flfoy U;k;k/kh‘k ¼T;s"B Js.kh½ ,slh lhfer izfr;ksxh ijh{kk esa] ftlesa fyf[kr ijh{kk gksrh gS] Hkkx ugha ys ikrsA egkfo|ky; dh fu;fer f‘k{kk cgqr igys NksM+ nsus rFkk vusd o"kZ rd ijh{kkvksa esa fy[kus ds vH;Lr ugha gksus ds dkj.k flfoy U;k;k/kh‘k ¼T;s"B Js.kh½] Hkys&gh flfoy U;k;k/kh‘k ¼izos‘k Lrj½ ds in ij ,slh izksUufr ds fy, vU;Fkk mi;qDr vkSj ;ksX; gksa] ftyk U;k;k/kh‘k ¼izos‘k Lrj½ ds in ij izksUufr ds fy, lhfer izfr;ksxh fyf[kr ijh{kk esa vU; flfoy U;k;k/kh‘kksa ¼T;s"B Js.kh½ ls lQyrkiwoZd eqdkcyk djus esa leFkZ ugha gksrsA vr% ftyk U;k;k/kh‘k ¼izos‘k Lrj½ ds in ij izksUufr ds fy, fopkj fd, tkus dk ,sls flfoy U;k;k/kh‘kksa ¼T;s"B Js.kh½ dk lafo/kku ds vuqPNsn 14 rFkk 16 ds v/khu izR;kHkwr yksd fu;kstu ds fo"k; esa lekurk vkSj leku volj dk vf/kdkj vkf{kIr ijarqd ls izHkkfor gksrk gSA ---- vkf{kIr ijarqd ls ftyk U;k;k/kh‘k ¼izos‘k Lrj½ ds in ij izksUufr ds fy, ;ksX;rk≶&Ts"Brk ds vk/kkj ij flfoy U;k;k/kh‘kksa ¼T;s"B Js.kh½ ij fopkj fd;k tkuk iw.kZr% fuokfjr gks tkrk gS tc rd fd ;Fkk la‘kksf/kr lu~ 1994 ds fu;eksa ds fu;e 5¼1½ esa visf{kr izfr‘kr izkIr ugha dh xbZ gksA

       iwoksZDr dkj.ko‘k ge lu~ 1994 ds fu;eksa ds fu;e 5¼1½ dk vkf{kIr ijarqd] ftlesa micaf/kr fd;k x;k gS fd inksa ij HkrhZ miyC/k fjfDr;ksa ds vk/kkj ij rc rd dh tk,xh tc rd visf{kr izfr‘kr izkIr fd;k x;k gks] lafo/kku ds vuqPNsn 14] 16] 233 vkSj 235 ds vf/kdkjkrhr ?kksf"kr djrs gSa] ijarq ge Li"V djrs gSa fd bl fu.kZ; ls og izksUufr;k¡ vkSj HkfrZ;k¡ izHkkfor ugha gksaxh tks igys&gh dh tk pqdh gSaA ¼2002½4 ,l lh lh 247] , vkb vkj 1993 ,l lh 477 rFkk ¼2006½9 ,l lh lh 507 vuqlfjrA , vkb vkj 1991 ,l lh 382] ¼1999½5 ,l lh lh 624] , vkb vkj 2001 ,l lh 2102 rFkk ¼2008½3 ,l lh lh 529 izHksfnrA ¼iSjk 21 ,oa 22

Advocates:
Rajendra Tiwari with Girish Shrivastava, Amitabh Gupta and Nikhil
Tiwari for petitioners;
V.S. Shroti with A.P. Shroti for respondent No.1;
Vivek Awasthi, Government Advocate, for respondent No.2.

ORDER

Patnaik, C.J. -- 1. The petitioners, who are all judicial officers belonging to the M.P. Lower Judicial Service, have filed this writ petition with a prayer to declare the second proviso under rule 5(1) of the M.P. Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994, as amended by notification dated 8th June, 2005 as ultra vires the Constitution of India.

2. The relevant facts briefly are that in the year 1994, the M.P. Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994 (for short "the 1994 Rules") were framed by the Governor of Madhya Pradesh in consultation with the High Court of Madhya Pradesh under Art.233 read with the proviso to Art. 309 of the Constitution of India. Rule 5(1) of the 1994 Rules provided for appointment to the posts of District Judge in Senior Time Scale by direct recruitment from the Bar and by promotion by selection on the basis of merit-cum-seniority from amongst officers belonging to the M.P. Lower Judicial Service. The first proviso to rule 5(1) of the 1994 Rules, however, stated that the number of vacancies to be filled up or reserved to be filled up by direct recruitment shall be determined by the High Court from time to time, but shall not exceed 10% of the total permanent strength and direct recruitment shall, as far as possible, be made biennially. The second proviso to rule 5(1) further provided that post for direct recruitment where suitable persons are not available for appointment, shall not be carried forward. In accordance with rule 5(1) of the 1994 Rules, Judicial Officers belonging to M.P. Lower Judicial Service were being considered for promotion by selection on the basis of merit-cum-seniority to the posts of District Judge in Senior Time Scale as and when vacancies arose.

3. In the year 1999, Justice Shetty Commission (for short "the Shetty Commission") submitted its report. The recommendation, in the Shetty Commission's report were considered by the Supreme Court in All India Judges Association and others v. Union of India and others [(2002)4 SCC 247], and the Supreme Court inter alia directed in its order dated 21st March, 2002 that recruitment to the Higher Judicial Service i.e. in the cadre of District Judges will be 50% by promotion from amongst Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing of suitability test, 25% by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service and 25% by direct recruitment from amongst eligible Advocates on the basis of written and viva-voce test conducted by the High Court and appropriate rules shall be framed by the High Court as early as possible.

4. Pursuant to the said direction of the Supreme Court in All India Judges Association case, the Governor of Madhya Pradesh, in consultation with the High Court of M.P., amended the 1994 Rues by notification dated 8th June, 2005 and substituted rule 5( 1) of the 1994 Rules as follows:

"5. Method of Appointment. -- (1) Appointment to the posts in category (a) of sub-rule (1) of rule 3 shall be made as follows :

(a) 50 per cent by promotion from amongst the' Civil Judges (Senior Division) on the basis of merit-cum-seniority and passing suitability test;

(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than 5 years qualifying service;

Provided that notwithstanding that a person has passed such competitive examination, his suitability for promotion shall be considered by the High Court on the basis of his past performance and reputation;

Provided further that recruitment to the posts shall be made on the basis of the vacancies available till the attainment of the required percentage.

(c) 25 per cent of the posts shall be filled by the direct recruitment from amongst the eligible advocates on the basis of the written test and viva voce cond