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High Court Staff Association v. TNPSC - WP.NOS.10923 OF 2007  RD-TN 2917 (6 September 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 06.09.2007
THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA
THE HONOURABLE MR. JUSTICE V.DHANAPALAN
W.P. NOS. 10923 & 11328 OF 2007
M.P. NOS. 1, 2 & 3 OF 2007
Madras High Court Staff Association
rep. by its Secretary
High Court of Madras
Chennai 60 104. .. Petitioner in WP 10923/2007 K.Venugopal .. Petitioner in WP 11328/2007 - Vs -
1. State of Tamil Nadu
rep. by its Secretary to
Government, Home Cts. I Dept.
Fort St. George, Chennai 600 009.
2. The Tamil Nadu Public Service Commission
rep. by its Secretary
Chennai 600 0002.
3. The Registrar General
Chennai 600 104. .. Respondents in both petitions W.P. No.10923 of 2007 filed for the issuance of a writ of declaration to declare the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007, as unconstitutional and illegal insofar as it fails to include service candiates with degree in law as eligible for recruitment to the post of Civil Judge (Junior Division) as stated therein. W.P. No.11328 of 2007 filed for the issuance of a writ of certiorarified mandamus calling for the records relevant to the order in G.O. Ms. No.79, Home (Cts. IA) dated 19th Jan., 2007, passed by the first respondent and quash the same in respect of upper age limit as 35 years for the post of Civil Judge (Junior Division) as improper, against the rule of law and principles of natural justice and direct the respondents to fix the upper age limit as 38 years for the candidates belonging to other than SC/ST candidates for the post of Civil Judge (Junior Division) in the Tamil Nadu State Judicial Service as stated therein. For Petitioners : Mr.Vijay Narayan, SC, for M/s. R.Parthiban & Narmadha Sampath in W.P. No.10923/07 Mr. C.Selvaraj, SC, for Mr. M.V.Muralidharan in WP 11328/07 For Respondents : Mr. R.Viduthalai, AG assisted by Mr.G.Sankaran, AGP (W) for R-1 Mr. V.Arun, GA (Writs) for R-2 Mr. R.Muthukumaraswamy, SC, for R-3 COMMON ORDER
This case relates to recruitment to the post of Civil Judge (Jr. Division) pursuant to Tamil Nadu Judicial Service (Cadre & Recruitment) Rules, 2007, (hereinafter referred to as 'Rules, 2007'). In one of the case, upper age limit of 35 years is under challenge. In the other case, the validity of rules prescribing source of recruitment is under challenge. 2. The condition of service of members of subordinate judiciary was decided by Supreme Court in the case of All India Judges Association Vs Union of India reported in (1992) 1 SCC 119. (referred to as 'All India Judges case 1). It was followed by a decision in a review petition reported in 1993 (4) SCC 288 (referred to as 'All India Judges case 2). Finally, certain directions were issued by Supreme Court in the said case reported in 2002 (4) SCC 247 (referred to as 'All India Judges case 3). Pursuant to Supreme Court direction in All India Judges case 2, Government of India constituted the First National Judicial Pay Commission, known as 'Shetty Commission', to determine the structure of pay and other emoluments, conditions of service of judicial officers, minimum qualifications, age of recruitment, method of recruitment, etc. Shetty Commission made recommendation and recommended the High Court to frame rules specifying age of retirement, prescribing writing of confidential report, giving common nomenclature to the Judges, equation of posts, recruitment of Civil Judge (Jr. Division) cum Magistrate (First Class), recruitment to the post of Civil Judge (Sr. Division), District Judge, minimum and maximum age limit, inter-se seniority, judicial education, training, pay scale, etc. The recommendation of the Commission was accepted by the Supreme Court in All India Judges case 3, with certain modification and certain directions were issued, which will be discussed at the appropriate stage. 3. Initially, in the State of Tamil Nadu, appointments were being made pursuant to the Tamil Nadu Judicial Service (Cadre & Recruitment) Rules, 1995, (hereinafter referred to as 'Rules, 1995') . Thereunder, minimum age limit of 25 years and maximum 38 years of age limit was prescribed as on 1st July of the year of selection for appointment. After recommendation of the Shetty Commission and in view of the direction of the Supreme Court in All India Judges case 3, the rule was substituted by the Tamil Nadu Judicial Service (Cadre & Recruitment) Rules, 2007. Therein, maximum age limit was brought down from 38 to 35 years and no provision was made for exemption of higher age limit. 4. The petitioner, K.Venugopal, a member of backward category, on successful completion of B.L. Degree, enrolled in the Bar Council of Tamil Nadu, Chennai, in the year 2000. He was about 29 years old at the time of enrolment. Under Rules, 1995, 4 years of experience having been prescribed, he was not eligible to apply till 2004. Subsequently, there being a ban on recruitment, no appointment was made and by the time the old rule was repealed by Rules, 2007. Now, the age limit prescribed for appointment is 35 years and as per the said age limit, the petitioner, K.Venugopal, is over-aged. The petitioner, K.Venugopal, therefore, challenged the prescription of the maximum age limit of 35 years. One of the ground has been taken that there being ban on recruitment, Tamil Nadu Government, though issued G.O. ms. No.98 dated 17th July, 2006, from its Personnel & Administrative Reforms Department in regard to relaxation of age limit of 5 years, but no such provision for relaxation of age limit has been made under Rules, 2007. 5. According to counsel for the respondents, in view of Supreme Court decision in All India Judges case 3, freshers to be accommodated and, therefore, taking into consideration all such aspects, the minimum and maximum age limit has been reduced. 6. The only question for determination in the case of the petitioner, K.Venugopal is whether he has any right to claim for relaxation of age limit and in absence of the same, whether he can challenge the age limit prescribed for appointment to a post. 7. The question of equality of opportunity in the matter of public employment fell for consideration before the Supreme Court in Ram Bhagat Singh - Vs State of Haryana reported in (1997) 11 SCC 417. In the said case, the Apex Court held that equality in public employment does not mean absolute equality. Steps should also be taken to ensure that amongst equals and unequals, belonging to downtrodden community, compete in terms with the equality with others and, thereby, condition must be created for them. For historical reasons, maximum age limit for SC and ST were allowed to be higher than those, who belong to other categories, including other backward categories. In another case of Union of India Vs - Shivbachan Rai reported in (2001) 9 SCC 356, the Supreme Court held that prescription of age limit for a post as also deciding the extent of age relaxation are essentially matters of policy and it is for the framers of rule to prescribe such age limit or prescribing the extent to which relaxation could be made. 8. In the present case, it is not in dispute that Rules, 2007, has been framed by the State under Proviso to Article 309 of the Constitution of India, in consultation with the High Court and the minimum and maximum age limit prescribed therein cannot be termed as arbitrary or unreasonable and, thereby, requires no interference. 9. The other writ petition has been preferred by Madras High Court Staff Association. Their grievance is their exclusion from the zone of consideration, though other sources prescribed for appointment to the post of Civil Judge (Jr. Division) from persons having same qualification, i.e., law graduate. According to them, their non-inclusion under Rules, 2007, is arbitrary and discriminatory and violates Article 14. Their main plea is based on the recommendation of Shetty Commission, particularly, paragraph 8.76 of the recommendation, which according to the petitioners, having accepted by the Supreme Court in All India Judges case 3, is binding in nature for framing such rules. 10. The Shetty Commission, while making different recommendations, also made the following recommendation at para 8.76 :- Recommendation by the Commission :
8.76. We are of opinion that it will be useful to extend the zone of selection to law graduates who are working in Courts and other allied departments. They acquire sufficient knowledge of law and procedure. Since we are suggesting intensive Institutional Training for about one year, such candidates could be properly shaped to become good judicial officers. We suggest that he law graduates with sufficient experience in service and within certain age limit both are to be prescribed by the respectivew High Court, could be made eligible for eslection to the cadre of Civil Judges (Jr. Divn.). 11. Under Rules, 1995, there were two sources of recruitment, i.e., i) From practicising advocates having four years of experience ; and ii) Additional Public Prosecutors having four years of experience There was no third source of recruitment prescribed under Rules, 1995. After the decision in All India Judges case 3, it appears that this Court, from its administrative side, constituted a 3 Judges Committee on 3rd June, 2006. The said Committee prepared draft rules, which was initially approved by the Full Court of this Court on 19th July, 2006, wherein following categories of High Court employees were included within the zone of consideration for appointment to the post of Civil Judge (Jr. Division) :- i) Sub-Assistant Registrars / Court Officers / Section Officers / Appeal Examiners / Interpreters of the High Court Service. ii) Personal Assistants to the Hon'ble Judges, Assistant Section Officers of the High Court Service who have put in a service of a period of not less than 4 years in these posts (whether as full members or as approved probationers) as on 1st July of the year of selection. iii) They should not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year in which the selection for appointment is made. 12. The draft rule was forwarded to the State Government, which referred it back to the High Court, as the power of selection through Tamil Nadu Public Service Commission was taken away under the said draft rules. This time, the High Court, from its administrative side, placed the matter before a 5 Judges Committee, which after detailed deliberations, vide its proceedings dated 18th Dec., 2006, made recommendation. This time, in the draft recommendation of rules, apart from two sources of recruitment, such as (i) Appointment of Advocates having three years of experience, (ii) Appointment of Addl. Public Prosecutors having three years experience, a third source (iii) fresh law graduates was created. However no other fourth source for recruitment was prescribed, including source of recruitment from amongst High Court employees having law degree. Minimum 25 years and maximum 35 years of age limit was prescribed for the first two sources, namely, Advocates and Addl. Public Prosecutors, but for freshers, minimum 22 years and maximum 27 years of age limit was prescribed. For SC/ST candidates, a little higher age limit was prescribed. 13. As the main thrust of argument is that the binding nature of the Shetty Commission's recommendation, in this case, it is only to be determined whether any such direction has been issued by the Supreme Court in All India Judges case 3. 14. In All India Judges case 3, at paragraph-2, the Supreme Court noticed the original direction given in the said case. The original direction did not relate to appointment to the post of Civil Judge (Jr. Division). In All India Judges case 2, the Supreme Court, while held that the advocates having three years of experience should be allowed, no observation was made, either with regard to freshers or employees of courts having law degree. It is after the recommendation of the Shetty Commission, in All India Judges case 3, deliberation was made with regard to such recommendations and different directions were issued apart from general observations. 15. At paragraph-9 of All India Judges case 3, Supreme Court noticed the recommendation of the Shetty Commission on different topics, including clause (4), which relates to recruitment to the post of Civil Judge (Jr. Division) cum Magistrate (First Class). There is a specific direction given with regard to recruitment in the higher judicial service, i.e., of District Judges at paragraph-28 of All India Judges case 3. Therein, certain recommendations of Shetty Commission had not been accepted. At paragraph-30 of the All India Judges case 3, Supreme Court approved the recommendation of Shetty Commission giving weightage to members of subordinate judicial service in their promotion to higher judicial service, in determining seniority vis-a-vis direct recruits. So far as Civil Judge (Jr. Division) is concerned, having noticed the earlier judgment in All India Judges case 2, that the Court observed that in order to enter judicial service, applicant must be an advocate of atleast three years standing, such finding was practically reviewed and direction was issued for extending the zone of consideration to fresh law graduates for their appointment to such post, as evident from paragraph-32, and quoted hereunder :- "32. In All India Judges Assn. case 2 (SCC at p. 314) this Court has observed that in order to enter the judicial service, an applicant must be an advocate of at least three years standing. Rules were amended accordingly. With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an advocate for at least 3 years should be done away with. After taking all the circumstances into consideration, we accept this recommendation of the Shetty Commission and the argument of the learned amicus curiae that it should be no longer mandatory for an applicant desirous of entering the judicial service to be an advocate of at least three years standing. We, accordingly, in the light of experience gained after the judgment in All India Judges case direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in three years of practice, to be eligible to compete and enter the judicial service. We, however, recommend that a fresh recruit into the judicial service should be imparted training of not less than one year, preferably two years." Though such specific direction has been given at paragraphs 28 and 32, different part of recommendation of Shetty Commission had not been accepted, but no specific direction has been given by Supreme Court to extend the zone of consideration to employees of Court having law degree for their appointment to the post of Civil Judge (Jr. Division). 16. From the judgment in All India Judges case 3, including the discussion, as made above, it will be evident that the Shetty Commission's recommendation was not accepted in full, but with modification, but mandatory direction was given only with regard to pay of judicial officers, appointment to the post of District Judge, extension of zone of consideration to fresh law graduates to be appointed to the post of Civil Judge (Jr. Division), etc., and rest of the recommendations were left open for the competent authority and the High Court to accept. 17. Learned senior counsel for the petitioner placed much reliance on paragraph-14 of the All India Judges case 3 to suggest that no compelling reasons shown for not accepting the recommendation of the Shetty Commission. But such submission cannot be accepted as it will be evident that the observation made at paragraph-14 of the All India Judges case 3 relates to recommendation of pay and not recruitment to the post, as quoted hereunder :- "14. The most important point in these proceedings appears to us to be as to whether the recommendation of the Shetty Commission laying down different scales of pay should be accepted or not. It is to be borne in mind that pursuant to the judgment in the review case ( All India Judges case 2) the Central Government had accepted the recommendation and had constituted the Shetty Commission. Correspondingly, it had deleted from the terms of reference of the Fifth Central Pay Commission the consideration in respect of the pay scales of the judicial officers. Therefore, it can safely be concluded that the Central Government had agreed to set up a Pay Commission specifically for judicial officers and normally the recommendations made in that behalf should be accepted unless for some specific and valid reason a departure was required to be made. We may here bear in mind that the Fifth Central Pay Commission Report which was submitted has been largely accepted by the Government of India with little or no modification. It was, therefore, rightly urged by Shri F.S.Nariman that there must be good and compelling reasons for the States and the Central Government in not accepting the recommendations of the Shetty Commission." On the other hand, from the aforesaid paragraph-14, one can come to a definite conclusion that the recommendation of Shetty Commission, except the portion of which accepted and direction given by the Supreme Court, was not binding on the State or the High Court, but for not accepting such recommendation in regard to pay, the State is supposed to show good and compelling reasons. 18. The condition of service of judicial officers are made by the State Government under Article 309, but it is made in consultation with the High Court in view of Article 233 and 234 of the Constitution of India. The Full Court of the High Court from its Administrative side, having not recommended to extend the zone of consideration to the High Court employees having law degree, there was no occasion for the State Government to include them. It is not the case of the petitioner the High Court is bound by the recommendation of the Shetty Commission and cannot make any other recommendation. 19. It is settled law that framers of rule is competent to prescribe condition of service, which are essentially matters of policy. There is nothing on record to suggest that non-extension of zone of consideration in favour of the High Court employees will render the provision arbitrary or discriminatory. The employees of the High Court, having law degree, cannot equate themselves either with the advocates having three years of experience or with the Addl. Public Prosecutors having three years of experience. They could equate themselves with the freshers, and they could so apply as a fresher, if otherwise qualified, being within the age limit and there is no bar for them to apply as a direct recruit. 20. At this stage, it is also necessary to make certain observation with regard to the difficulty as the High Court may face if the zone of consideration is extended to High Court employees. The employees, who are holding ministerial posts, generally in all the High Courts their Annual Confidential Reports are maintained. Such reports are prepared on the basis of their efficiency, behaviour with superiors and subordinates, integrity, etc. In case there are adverse remarks in the confidential reports of such employee as regards his/her integrity, it is not clear as to how such employees could be excluded, if otherwise competes in the examination and comes within the zone of appointment in the merit list for direct recruitment. In the matter of promotion, such character role are generally taken into consideration for such promotion, merit being one of the criteria. But in direct recruitment, how such character role could be taken into consideration, if an employee competes with outsiders. This is a question, which may require to be determined by the High Court from its administrative side at appropriate stage, but we are not supposed to answer such question in the present case. 21. In view of our observation aforesaid, no relief could be granted to the petitioners in any of the cases. Both the writ petitions are accordingly dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, there shall be no order as to costs. (S.J.M.J.) (V.D.P.J.) 06.09.2007 Index : Yes/No
Internet : Yes/No
1. The Secretary
Home Cts. I Department
Government of Tamil Nadu
Fort St. George
Chennai 600 009.
2. The Secretary
Tamil Nadu Public Service Commission
Chennai 600 0002.
3. The Registrar General
Chennai 600 104.
S.J. MUKHOPADHAYA, J. AND V.DHANAPALAN, J.
PRE-DELIVERY ORDER IN
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