Madras High Court
P. Manogarane, Secretary, The ... vs Union Of India (Uoi), Union Territory Of ... on 21 January, 1993
Equivalent citations: (1993)2MLJ50
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
ORDER A.R. Lakshmanan, J.
1. W.P. No. 3642 of 1992: The petitioner is the Secretary of the Pondicherry Bar Association. He filed the above writ petition on behalf of the Bar Association, which according to the petitioner, is devoted to act in furtherance of the interest of the Bar, Judiciary and the Rule of Law with a view to achieve justice to the litigant public, with the following prayer:
To issue a writ in the nature of a certiorari or any other appropriate writ or order, calling for the records relating to the Order No. 59/SPA/ 92-LD, dated 27.2.1992 on the file of the 4th respondent and G.O.Ms. No. 31/84/LLD, dated 2.7.1984 on the file of the 4th respondent and to quash the same and to pass such further or other order as this Court may deem fit and proper.
2. The petitioner filed W.M.P. No. 19852 of 1992 to amend the prayer in the writ petition, which is as follows:
To issue a writ in the nature of a certiorari or any other appropriate writ or order, calling for the records relating to the Order No. 59/SPA/ 92/LD, dated 27.2.1992 on the file of the 4th respondent and G.O.Ms. No. 31/84/LLD, dated 2.7.1984 on the file of the 4th respondent and to quash the same in so far as the 3rd respondent is concerned and to pass such further or other order as this Court may deem fit to grant.
3. The short facts of the case are as follows:- By order dated 27.2,1992 bearing No. 59/SPA/92-LD, the 3rd respondent (V.A. Edward Kumar), a junior time scale (Grade II) Officer of the Pondicherry Judicial Service, was promoted with immediate effect to the junior scale (Grade I) of that service and posted as Special Officer-cum-Subordinate Judge (Second Additional), Judicial Department, Pondicherry. The 3rd respondent had been appointed to the junior scale (Grade II) of the Pondicherry Judicial Service with effect from 8-5-1984 along with four others viz., S.R. Pushpavalli, L. Veeranath Rao, G. Patric and G. Rajasurya, who are respondents 2 to 5 in W.P. No. 14035 of 1992. According to the petitioner, the 3rd respondent came on transfer to the Law Department, Pondicherry and thereafter he passed B.L. degree examination from the Pondicherry Law College, then affiliated to the Madras University, by availing study leave, in or about 1975. Even after passing the law degree examination, he continued in the service of the Law Department till his appointment to junior scale (Grade II) of the Pondicherry Judicial Service by the said Government Order dated 2.7.1984.
4. The petitioner submits that the 3rd respondent neither practised law as an Advocate nor held a post which requires knowledge of law in its recruitment rules, for a period of three years in substantive capacity prior to his consideration, selection and appointment to the Judicial Service as required under the Pondicherry Judicial Service Rules, 1980 (hereinafter referred to as the Rules). Even after the appointment of the 3rd respondent under the junior scale (Grade II), he had not acted a single day as a Judicial Officer since his appointment with effect from 8.5.1984. The junior scale (Grade II) judicial post is equivalent to the post of a District Munsif. Junior scale (Grade I) post is equivalent to the post of a Subordinate Judge. To hold the post of a Subordinate Judge, which carries an unlimited pecuniary jurisdiction besides appellate powers on certain matters, the incumbent should have judicial experience at least for five/six years actually discharging judicial functions sitting in a Court and disposing cases. The 3rd respondent cannot contend and justify his continuance in officiating appointments on other duty in the Law Department stating that he was not given a post to discharge judicial functions. The 3rd respondent, as on this, date, lacks experience, service requirement and practical knowledge for being promoted and appointed as a Subordinate Judge. The public in general and the litigant public in particular are entitled to have their lis and disputes adjudicated upon by a qualified, experienced, fit and knowledgeable Subordinate Judge since dispensation of justice in the Sub Courts are matters of considerable public and private consequence and importance. The 3rd respondent had not undergone any training as a District Munsif besides that he had not discharged the functions of a District Munsif.
5. The procedure followed for selection and appointment of Judicial Officers to junior scale (Grade II) in Pondicherry is to call for applications by advertisement in newspapers from eligible/qualified candidates. The qualified candidates/applicants are required to take a written examination consisting of two papers. The candidates who had secured requisite marks for qualifying themselves to be called for an oral examination would be called upon to appear for a viva-voce examination before the Selection Committee contemplated under Rule 10 of the Rules. During the year 1983 just before the appointment of the 3rd respondent, there was an advertisement calling for applications from qualified and eligible candidates. Thereafter, there was a written examination consisting of two papers. Persons who secured qualifying marks were interviewed and examined orally by the Selection Committee. During the year 1983, by the abovesaid process only one person was selected and that was Rajasurya, 5th respondent in W.P. No. 14035 of 1992. Therefore, to the knowledge of the petitioner, the 3rd respondent was not selected during the year 1983 by the process afore mentioned for being appointed during July, 1984 along with the said Rajasurya.
6. Rule 12 of the Rules requires that the High Court shall, before making recommendation to the Administrator, invite applications by advertisement and may require the applicants to give ' such particulars as it may prescribe and may further hold such tests as may be considered necessary. Rule 12 is uniformly applicable to all persons who are to be selected to the Pondicherry Judicial Service irrespective of the fact as to whether such person is drawn either from the Bar or from the Service of the Union Territory, State or Centre. In the circumstances, the petitioner submits, that in respect of the 3rd respondent alone a different procedure could not and cannot be followed for appointing him to junior scale (Grade II) of the Pondicherry Judicial Service. There was no possibility of selecting the 3rd respondent separately without application, without written examination and without personal interview and oral examination as had been done in respect of others particularly of those who applied during 1983. Any departure in the case of the 3rd respondent shall only invalidate his appointment to junior scale (Grade II) of the Pondicherry Judicial Service. Thus, according to the petitioner, the appointment of the 3rd respondent to junior scale (Grade II) and junior scale (Grade I) of the Pondicherry Judicial Service were clearly illegal, improper, contrary to the Rules and violative of Articles 14 and 16 of the Constitution of India.
7. The State of Pondicherry being a Union Territory, governed by Article 239 of the Constitution of India and being administered by the President of India through the Lieutenant Governor of Pondicherry, fall within the purview of, in respect of service matters, the Union Public Service Commission. Article 234 of the Constitution of India contemplates consultation with the Public Service Commission before appointment of Judicial Officers other than District Judges. Even though Article 234 of the Constitution of India refers to State it shall in principle apply to Union Territory also. In so far as the appointment of the 3rd respondent to the Pondicherry Judicial Service, the same had not been made after consultation with the Union Public Service Commission and hence his appointment is violative of Article 234 of the Constitution of India and is liable to be set aside, both in respect of Grade II and Grade I appointments.
8. The 3rd respondent prior to his appointment and subsequent to his appointment as aforesaid, continued to work in the executive post in the Law Department. If at all the 3rd respondent had been working in the Law Department, he should have been doing so only on deputation on lien service. The 3rd respondent had been working in the Law Department continuously since May, 1984, till his present promotion and appointment on 27.2.1992, i.e., for a continuous period of seven years and nine months. Therefore, the 3rd respondent cannot have any claim in the Pondicherry Judicial Service at this point of time.
9. Article 50 of the Constitution of India enjoins upon the State the duty of separation of judiciary from executive. The 3rd respondent was and is an executive. It would be a constitutional duty failure on the part of respondents 1, 2 and 4 to allow the appointment of an executive to junior scale (Grade II) post in the Pondicherry Judicial Service by a process and procedure different from the one followed in the case of others selected to the said post and service. Nevertheless, his continuance in an executive post for an unlimited and continuous period, stretching about eight years, would amount to packing the judiciary with an executive so as to fit him later on in higher posts in the judiciary as and when it suits the executive. The 3rd respondent, who is nothing but an executive in his colour, complexion, experience, taste, attitude and service cannot be suddenly transplanted in a higher judicial post, viz., in the post of Subordinate Judge. Such an act and attempt shall clearly be violative of Article 50 of the Constitution of India. Therefore, the posting of the 3rd respondent as a Subordinate Judge with no equipment whatever is nothing but an indirect invasion of judiciary by an executive. Thus, the petitioner has prayed to quash the impugned orders dated 27.2.1992 and 2.7.1984 in so far as the 3rd respondent is concerned.
10. A common counter affidavit was filed on behalf of respondents 1, 2 and 4. The affidavit was sworn to by A. Chandrasekhara Menon, Secretary to Government, Law Department, Government of Pondicherry, who is conversant with the facts of the case, making the following averments. By virtue of Article 320 of the Constitution, all matters relating to methods of recruitment to the service and posts in connection with the affairs of the Union Territory fall under the purview of the Union Public Service Commission and the Union Public Service Commission shall be consulted on such matters. However, according to the Proviso to Clause 3 of Article 320 of the Constitution, the President has been empowered to make regulations, specifying the matters in which either generally or in any particular class of cases or any particular circumstances to exempt the necessity of consultation with the Union Public Service Commission. By virtue of Clause 3 of Article 320 of the Constitution, the President has made a regulation called the Union Public Service Commission (Exemption from Consultation) Regulations, 1958. According to paragraph 2 of the said Regulations, it shall not be necessary to consult the Commission in regard to any of the matters mentioned in sub-clauses (a) and (b) of Clause 3 of Article 320 of the Constitution in the case of service and posts specified in the Schedule to the said regulations. Item No. 9 of the Schedule to the abovesaid Regulations includes all civil and criminal judicial posts in the Union Territory under the control of a High Court or a Court of Judicial Commissioner other than those included in Item No. 8. Item No. 8 specifies the posts of Judicial Commissioners, Additional Judicial Commissioners, District Judges, Sessions Judges, Additional District Judges and Additional Sessions Judges in Union Territory.
11. By virtue of the Union Public Service Commission (Exemption from Consultation) Regulations, 1958, recruitment and appointment to the judicial posts have been exempted from the consultation process with the Union Public Service Commission when the same is to be done with the High Court.
12. The Government of Pondicherry considered the question of constituting a regular organised service for the judicial officers in the Union Territory of Pondicherry. When the Government of India was addressed for that purpose, the Government of India by Notification No. 30/16/76-Jus., dated 31.8.1979, issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution, directed that the Lieutenant Governor of Pondicherry shall exercise the power to make rules in the case of judicial officers of the Union Territory of Pondicherry and posts in connection with the affairs of that Union Territory in so far as such affairs relate to the administration of justice for regulating all or any of the following matters, namely, i. The method of recruitment to such service and posts;
ii. The qualifications necessary for appointment to such service and posts; and iii. The conditions of service of persons appointed to such service and posts in so far as such conditions relate to probation, confirmation, seniority and promotion.
The said Notification further provides that any recruitment rule including any rule relating to probation, confirmation, seniority or promotion made by the Lieutenant Governor in pursuance of this direction, shall be made in consultation with the Madras High Court. It was therefore, the Government of Pondicherry, in consultation with the Madras High Court, framed the rules called the Pondicherry Judicial Service Rules, 1980, and notified the same in Law and Labour Department's G.O.Ms. No. 1/1980-LLd, dated 10.1.1980. These rules were amended from time to time and all appointments to the Pondicherry Judicial Service have been made under the said Rules in consultation with the High Court, Madras.
13. The Rules provide in Pan II for the constitution and strength of the service. Sub-rule (2) of Rule 3 provides that the service shall have a junior scale and senior scale. The junior scale has two grades, viz., time scale Grade II and senior Scale Grade I. According to Rule 4, the posts borne on the permanent strength of the service and the posts included therein shall be as specified in the Schedule. The Schedule specifies the authorised permanent strength of the service and the nature of the posts included in it. In the junior scale, the posts of Sub Divisional Judicial Magistrate, Judicial First Class Magistrate, District Munsif and the District Munsif-cum-Sub Divisional Judicial Magistrate are included under time scale (Grade II) and the posts of Chief Judicial Magistrate, Subordinate Judge and Special Officer are included in the selection grade scale (Grade I). Further, according to the Schedule, the senior scale posts include Chief Judge and District and Sessions Judge. According to Rule 5, all appointments to service shall be made to the corresponding scale and grade of the service and not against any specified post and a person appointed to the service shall be designated in accordance with the duties being discharged by him for the time being.
14. Part III of the said Rules provides for the method of recruitment. Rule 7 under this part enables the Administrator to recruit personnel in the junior time scale (Grade II) and the direct recruitment, if any, in the senior scale on the recommendations of the High Court. Sub-rule (2) of Rule 7 enables the Administrator, on the recommendations of the High Court, to make promotions from one scale to another and from one grade to another. Rule 8 provides for initial recruitment to the service. According to Rule 8, the High Court shall recommend to the Administrator suitable persons for appointment to the service from amongst the Judicial Officers and Legal Advisers to Government in service in the Union Territory of Pondicherry at the time of the commencement of these Rules. Sub-rule(2) of Rule 8 provides that the High Court may at its discretion, examine the character rolls and hold such other tests as may be deemed fit. Rule 9 provides for recruitment after the initial recruitment and states that such recruitment shall be made by direct recruitment from the Bar and also from Service, provided they are otherwise found eligible by the Selection Committee. Rule 10 provides for the constitution of the Selection Committee including therein the Chief Justice or a Judge of the High Court deputed by him, Chief Secretary to Government, Pondicherry Administration, Secretary, Law Department, Pondicherry, and the Head of the Judicial Department, Pondicherry.
15. Rule 11 of the Rules prescribes the qualifications for direct recruits to the junior scale specifying, (i) citizenship of India; and (ii) practice as an advocate or qualification for being enrolled as an advocate under the Advocates Act, 1961. Subsequently, by a Notification issued in G.O.Ms. No. 70/ 83-LLD, dated 3.11.1983, the qualification for direct recruits to the junior scale in the service was amended as practice as an advocate and service in any post under the Central or State Government or Union Territory Administration, requiring knowledge of law for a period of not less than three years. While the Rules as originally framed made even a fresher out of the Law College eligible for being considered for appointment to the junior scale, the amendment required a practice of three years or three years service in a post requiring knowledge of law under the Government for being considered for appointment to the junior scale Grade II of the service. Consideration of law graduates working in executive posts for appointment to the judicial posts is a common feature in almost all State Judicial Service Rules including Tamil Nadu. Rule 4 of the Tamil Nadu Rules provides for transfer of 9 out of 20 posts from the service to the cadre of District Munsif. Rule 19 of the Rules enables the Administrator, in consultation with the High Court, to fill up any vacancy in the service by making temporary appointment thereto.
16. The Government of Pondicherry after the framing of the Rules, took steps for initial constitution of the service under Rule 8. According to Rule 25, the initial recruitment shall be made subject to the consent of the officer selected. Having regard to the fact that the initial appointment to the service shall be made from amongst the Judicial Officers and Legal Advisers to the Government in service in the Union Territory of Pondicherry at the time of the commencement of the Rules, consent letters were obtained from all Judicial Officers and the Legal Advisers in the Law Department, viz., the Secretary to Government, Law Department, Deputy Secretary to Government, Law Department, Under secretary to Government, Law Department and the Officer on Special Duty, Law Department. After getting the consent, the Selection Committee made selection of officers from among the Judicial Officers and the Legal Advisers under Rule 8.
17. Thereafter, the High Court by its letter No. ROC.2849/1981-B1, dated 17.8.1982 communicated its recommendations for initial recruitment to the Pondicherry Judicial Service as on 17.12.1980. There after, by a Notification issued in G.O.Ms. No. 54/83-LLD, dated 25.7.1983, the Government appointed as many as 17 officers to the Judicial Service in different scales and grades with effect from 17.12.1980.
18. Consequent on the retirement and migration of officers to other services, four substantive vacancies arose in the senior scale and junior scale of the service. After the filling up of these vacancies to the extent permissible by promotion, four substantive vacancies arose in the junior scale (Grade II) of the service. Having regard to the fact that a few of the officers who had expressed their willingness both from among the Judicial Officers and also from among the Legal Advisers of the Government could not be inducted into service for want of vacancies, these officers were considered for appointment to the junior scale (Grade II) of the service. For this purpose, the Selection Committee under the Chairmanship of the then Chief Justice of the Madras High Court met on 7.1.1984 and considered eight Judicial Officers and two Legal Advisers to the Government including the 3rd respondent for appointment to the service. The Selection Committee considered the candidates in the order of merit and found them eligible and fit for being recommended for appointment to the service on regular basis against the then existing regular reserved and unreserved vacancies and such vacancies that might arise in future. The Selection Committee also recommended that until the officers are appointed on regular basis, they may be allowed to continue to hold the post on officiating basis against the regular reserved vacancies and temporary vacancies. The High Court, Madras, by D.O. Letter No. 1329/84-D, dated 8.5.1984 made recommendations to the Government of Pondicherry accordingly. Thereafter, the Government of Pondicherry by Notification issued in G.O.Ms. No. 31/84-LLD, dated 2.7.1984 appointed the following officers to the junior scale (Grade II) of the service under Sub-rule (1) of Rule 7 read with Rule 14, with effect from 8.5.1984:
1. S.R. Pushpavalli
2. L. Veeranath Rao
3. G. Patric
4. G. Rajasuria
5. V.A. Edward Kumar.
19. It is further submitted that the 3rd respondent is a degree holder in law having obtained the same from the University of Madras in the year 1975. He was appointed as Superintendent in the Law Department, which is at present a Group 'B' Gazetted post with effect from 20.3.1978. He was promoted as Officer on Special Duty in the rank of Under Secretary to Government in the Law Department oh 7.3.1980 in the scale of pay which is the same as that of the junior scale (Grade II) of the Pondicherry Judicial Service. In both the capacities as Superintendent and Officer on Special Duty in the Law Department, the 3rd respondent has been vested with duties involving giving of legal advice, processing of litigations and prosecutions and legislative drafting. His contribution to the legal functions of the Law Department had been significant and the 3rd respondent associated and involved himself actively in the conduct of cases in the trial court, High Court and even Supreme Court by preparation of pleadings and briefing of the counsel. The 3rd respondent was also tendering legal advice on various issues on administrative, revenue and other branches of law. He also performed the duties of a Legislative Draftsman. It is only in consideration of his performance as a Legal Adviser in the Law Department, the Selection Committee considered him eligible to be appointed to the junior scale (Grade II) of the Pondicherry Judicial Service, and after going through his confidential character rolls, selected him on merit to the service. As there was no vacancy immediately available in the Pondicherry Judicial Service in July, 1984, when the 3rd respondent was appointed, he could not be posted to the service immediately. From 1.1.1985 to 31.12.1985, he had been deputed to the Ministry of Law (Legislative Department) for training in legislative drafting and on his return from the training, his service had to be utilised in the Law Department for administrative reasons. The 3rd respondent was retained in the Law Department in public interest and when his turn for getting promotion to the next higher grade in the cadre occurred, he had been promoted and posted in a post included in the junior scale (Grade I) of the Pondicherry Judicial Service.
20. It is submitted that the 3rd respondent was appointed to the junior scale (Grade II) of the Pondicherry Judicial Service as early as 8.5.1984 and this appointment was duly notified in G.O.Ms. No. 31/84-LLD, dated 2.7.1984. The petitioner has not challenged the above appointment all these years. The impugned Order No. 59/SPA/ 92-LD, dated 27,2.1992 is only a sequel to the Notification issued on 2.7,1984 when the turn for promotion to the next grade of the 3rd respondent occurred. Having allowed the order issued in G.O.Ms. No. 31/84-LLD, dated 2.7.1984 to continue in force without challenge, the petitioner cannot be heard to contend that the Order No. 59/ SPA/92-LD, dated 27.2.1992 is liable to be quashed. The petitioner is clearly guilty of laches and the writ petition is liable to be dismissed in limine on this ground alone.
21. The Rules specifically prescribe that for appointment to the junior scale (Grade II) of the Pondicherry Judicial Service, a person should have either practised, as an advocate or should have held any post under the Central or State Government or Union Territory Administration requiring knowledge of law. Inasmuch as the 3rd respondent has held the post requiring knowledge of law for more than three years and he was functioning as a Legal Adviser to the Government, he had been considered and appointed by a duly constituted Selection Committee to the junior scale (Grade II) of the .Pondicherry Judicial Service. Inasmuch as the post of Subordinate Judge is only a selection grade post in the junior scale, the 3rd respondent was appointed to the grade when his turn came, on the recommendations of the High Court. Thus, the appointment of the 3rd respondent and his promotion in the Pondicherry Judicial Service have been done strictly in accordance with the Pondicherry Judicial Service Rules, 1980 framed under Article 309 of the Constitution of India. The provisions of Section 3 of the Pondicherry Civil Courts Act have been fully complied with.
22. The appointment of the 3rd respondent to the Pondicherry Judicial Service does not in any way offend the provisions of Article 50 of the Constitution of India providing for separation of executive from judiciary or independence of judiciary. There is no specific years of service or experience required for promoting a junior scale (Grade II) officer to the selection grade viz. junior scale (Grade I). The 3rd respondent was retained in the Law Department even after his appointment in the Pondicherry Judicial Service in public interest. The post of Subordinate Judge is also a floor level post having original jurisdiction and has appellate powers only in some special enactments like Municipalities Act, Stamp Act, etc. The allegation that the incumbent should have judicial experience at least for five or six years actually discharging judicial functions for purposes of being promoted to junior scale (Grade I) is not supported by any rule and is not, therefore, maintainable. There is no provision in the Pondicherry Judicial Service. Rules to impart training to District Munsifs.
23. It is submitted that after the constitution of the Pondicherry Judicial Service, all recruitments to the service were made without any written examination. When the 3rd respondent was considered and selected for the Pondicherry Judicial Service, it was a selection made from among those who were already serving as Judicial Officers and Legal Advisers to Government but who could not be inducted into service at the time of initial constitution for want of vacancies on the date on which the initial Constitution was made. As a matter of fact, after the Pondicherry Judicial Service was constituted, all the selections were made only on the basis of oral interview and no written examinations were conducted. It was only on two occasions prior to the constitution of the service, written examinations were conducted. It is not correct that in respect of the 3rd respondent alone a different procedure was followed. There were as many as nine persons inducted to the Pondicherry Judicial Service from the service following the same procedure. The question of conducting any written examination or oral interview did not, therefore, arise. The allegation that any departure in the case of the 3rd respondent shall only invalidate his appointment to the junior scale (Grade II) Of the Pondicherry Judicial Service, is unsustainable.
24. According to respondents 1,2 and 4, the judicial posts in the Union Territories do not fall under the purview of the Union Public Service Commission. Also according to the delegations made by the President of India to the Administrator under Article 239 of the Constitution of India in Notification dated 31.8.1979, the Administrator has been empowered to frame rules and make recruitment, etc., in consultation with the High Court, Madras. Pursuant to the said Rules, the Government of Pondicherry appointed the 3rd respondent to the junior scale (Grade II) and Junior scale (Grade I) of the Pondicherry Judicial Service on the recommendations of the High Court. Even assuming without admitting that Article 234 of the Constitution of India applies to this case, the provisions of the said Article have been substantially complied with in the case of the appointment of the 3rd respondent to the Pondicherry Judicial Service and his subsequent promotion from Grade II to Grade I.
25. The 3rd respondent/appointee has also filed his counter affidavit denying all the allegations contained in the affidavit filed in support of the writ petition. He submitted that he passed the degree in law during 197S. Applications were called for from in-service candidates for appointment to the post of Superintendent (Technical) in the Law Department of the Government of Pondicherry. He applied for the post and on being selected was appointed to the abovesaid post with effect from 20.3.1978. Thereafter, he was promoted to the post of Officer on Special Duty in the rank of Under Secretary to Government in the Law Department with effect from 7.3.1980. While he was functioning as the Officer on Special Duty in the Law Department, the Government of Pondicherry constituted an Organised Service called Pondicherry Judicial Service. The Government called for option from the Legal Advisers in the Law Department to be encadred to the said service. Incidentally, both as the Superintendent and as the Officer on Special Duty, the 3rd respondent was engaged on legal works involving rendering of advice on civil, criminal and revenue matters, monitoring and settling pleadings at the level of Subordinate Courts, High Court and Supreme Court, drafting of Legislations and instructing the Law Officers of the Government in Government cases. Therefore, he gave his option to be considered for appointment to the Pondicherry Judicial Service.
26. According to the 3rd respondent, by a Notification issued in G.O.Ms. No. 31/84-LLD, dated 2.7.1984, the Government of Pondicherry appointed him along with four others to the Pondicherry Judicial Service in the junior scale (Grade II) of the said service with effect from 8.5.1984. In 1985, he was deputed for one full year training in Legislative Drafting in the Ministry of Law (Legislative Department), Government of India, which he completed with credit, as the report of the officer not less than the Legislative Secretary of the Government of India would show. On return from the training, he continued to function in the Law Department and was appointed as Under Secretary in the Law Department with effect from 27.7.1988. He was further prromoted as Deputy Secretary to Government in the Law Department with effect from 18.11.1991. While he was. functioning as Deputy Secretary, the Government of Pondicherry by an Office Order No. 59/SPA/92/ LD, dated 27.2.1992 appointed him, on the recommendations of the High Court, Madras to the junior scale (Grade I) of the Pondicherry Judicial Service and posted as the Special Officer-cum-Additional Subordinate Judge (Second Additional), Judicial Department, Pondicherry. He assumed charge of the said post with effect from 28.2.1992 and by Proceedings No. 835/JD/A/92-604, dated 5.3.1992, the Chief Judge, Pondicherry, transferred to the file of the Second Additional Subordinate Judge as many as 100 cases for adjudication. It is at this stage, the petitioner has filed this writ petition to quash the orders dated 27.2.1992 and 2.7.1984.
27. According to the 3rd respondent, he gained entry in the service of the Law Department, Pondicherry, only by virtue of the law qualification acquired by him and when he was appointed to the Pondicherry Judicial Service, he was holding for more than three years a post in Law Department requiring special knowledge of law inasmuch as he was dealing with legal advice, Government litigations and prosecutions and drafting of laws. As a matter of fact, the requirement of a degree in law is an obligatory qualification to the post of Superintendent in the Law Department, which is at present a Group 'B' Gazetted post. The allegation that this respondent did not practise law as an advocate nor held a post which required knowledge of law has no merits. Having been encadred to the Pondicherry Judicial Service in the junior scale (Grade II), the appointment of this respondent to the junior scale (Grade I), which is only a selection grade of the junior scale, is only in the normal course of events that come in turn. This respondent could not be held responsible for his not being posted in the judicial posts after May, 1984. According to Rule 11 of the F.Rs., the Government is at liberty to utilise the services of its officers in any manner it likes consistent with their status. Hence, the allegations that this respondent had not evinced any interest or took any attempt to get himself posted as a Judicial Officer, are unsustainable.
28. A common counter affidavit was filed on behalf of the Registrar, High Court, Madras in W.P. Nos. 3642 and 9391 of 1991. While dealing with the allegation in paragraph 9 of the affidavit that the 3rd respondent had neither practised as an Advocate nor held any post under the Government which requires knowledge of law for a period of not less than three years in substantial capacity as on 8.5.1984 is not correct, the 5th respondent has stated in the counter affidavit as follows:
The 3rd respondent was appointed to the post of Legal Adviser, Law Department, Union Territory of Pondicherry, which requires knowledge of law, and held the said post for a period of more than three years on the date of his appointment as junior scale (Grade II) and thus, he satisfied the condition prescribed in Rule 11(1)(b) of the Rules. Rule 11(1)(b) of the Rules reads as follows:
(b) must have practised as an Advocate or must have held any post under the Central or State Government or Union Territory Administration requiring knowledge of law for a period of not less than three years and As per the aforesaid rule, holding of a post which requires the knowledge of law for a period of three years alone is sufficient for appointment to the post of junior scale (Grade II) and the post need not be in a substantial capacity as stated by the petitioner. The petitioner himself admitted that the 3rd respondent continued in the Law Department till his appointment to junior scale (Grade II) of the Pondicherry Judicial Service. For appointment even to the post of Superintendent in the Law Department, law degree is essential. Therefore, the appointment of the 3rd respondent to the Pondicherry Judicial Service is legal and proper.
29. It is further stated in the counter that a Selection Committee consisting of the then Hon'ble Chief Justice, the Chief Secretary, Pondicherry Administration, Pondicherry, Secretary, Law Department, Pondicherry, and the then Chief Judge, Head of Judicial Department, Pondicherry, held a meeting on 7.1.1984 and the said committee recommended the appointment of ten officers to the Pondicherry Judicial Service on regular basis against the then existing vacancies, reserved and unreserved, and such vacancies that may arise in future. The Committee had also stated in its minutes that until the aforesaid officers are so appointed on regular basis, they may be allowed to continue to hold the posts on officiating basis against the regular reserved vacancies and temporary vacancies. The relevant portion of the minutes of the Selection Committee reads as follows:
The Selection Committee considered the case of the following eligible Judicial Officers who had been appointed prior to 25.7.1983, i.e., the issue of orders making initial recruitment to the service and who were holding the judicial posts of District Munsif under Rule 31, namely, Date of appointment
1. Thiru L. Veeranath Rao 4.7.1975
2. Tmt. S.R. Pushpavalli 23.2.1977
3. Thiru G. Patric 18.11.1977
4. Thiru G. Rajasurya 9.1.1980
5. Thiru D.K. Venugopalu 14.6.1983
6. Thiru D. Ramabadhran 14.6.1983
7. Thiru R. Parthasarathy 14.6.1983
8. Tmt. C. Boubavady 14.6.1983 The Selection Committee also considered the case of two Legal Advisers to Government in service in the Union Territory of Pondicherry, who were eligible under the rules, viz., Thiru V. Narayanaswami, Under Secretary to Government, Law Department, and Thiru V.A. Edward Kumar, Officer on Special Duty, Law Department. Among these two officers, Thiru V. Narayanaswami has been in service from 3.2.1978 and was eligible for being appointed in the initial recruitment to the service, but could not be included for want of vacancy. Thiru V.A. Edward Kumar, though appointed as Legal Adviser after the publication of the Rules, had been in service as Legal Adviser for more than three years at the time of the initial recruitment to the service. The Committee also considered that everyone of the officers mentioned above had been selected by properly constituted Selection Committee and appointed in accordance with the Recruitment Rules which were prevalent at the time of their appointment as regards their respective posts.
The Committee verified and found that all the aforesaid officers have the necessary qualifications for being appointed to Grade II in the junior scale of the Service, as prescribed in Rule 11. The Committee assessed the past performance of all the officers concerned by scrutinising their confidential reports and also considered the proceedings of the Minutes of the last Selection Committee in which the Judicial Officers in Serial Nos. 5 to 8 in the list above were selected for appointment. The Committee ascertained from the Law Secretary and the Chief Judge, who are the members of the Committee, that the performance of all the aforesaid candidates have been throughout good.
Taking into account the general assessment about the past services of the aforesaid officers and having found all of them eligible and suitable for being appointed to Grade II in the junior scale of the Service, the Selection Committee concluded that the aforesaid ten officers may be recommended for appointment.
30. Thus, it is stated in the counter affidavit of the 5th respondent that since the Selection Committee has specifically stated that V.A. Edward Kumar (3rd respondent), though appointed as Legal Adviser after the publication of the Rules, had been in service as Legal Adviser for more than three years at the time of the initial recruitment to the service, i.e., 25.7.1983 and as such, he is eligible for appointment as junior scale (Grade II). It is further stated that the list of candidates including the 3rd respondent, along with nine others selected by the Selection Committee for appointment as junior scale (Grade II) to the Pondicherry Judicial Service, was approved by the High Court and the same was communicated to the Secretary to Government, Law Department, Pondicherry, in its letter D.O. No. 1329/84/Bl, dated 8.5.1984. After the approval by the High Court, the Pondicherry Administration appointed five of them including the 3rd respondent as junior scale (Grade II) in their G.O.Ms. No. 31/84-LLD, dated 2.7.1984. As such, the appointment of the 3rd respondent as junior scale (Grade II) is valid and proper. The Government of Pondicherry in their letter dated 24.1.1992 had sent a proposal for the approval of the High Court for promotion of E.V. Kumar as senior scale and of V.A. Edward Kumar (3rd respondent), junior scale (Grade II) to junior scale (Grade I). The High Court recommended the said proposal and the same was communicated in its D.O. Letter No. 133/91/Con.B1, and on the recommendation of the High Court the Pondicherry Administration appointed the 3rd respondent as junior scale (Grade I). Therefore, the appointment of the 3rd respondent as junior scale (Grade II) is in order and proper.
31. W.P. No. 9391 of 1992: The petitioner and the respondents in this writ petition are the same as in W.P. No. 3642 of 1992. The petitioner has filed this writ petition for the following relief: To issue a writ of quo warranto or any other appropriate writ or order directing the respondents to show cause under what authority the 3rd respondent claims his appointment to the public office of Judicial Officer, junior scale (Grade I and II) in the Pondicherry Judicial Service and perform duties connected thereto and enjoys the privileges relating therewith and to pass such further or other order as this Court may deem fit.
32. The averments in this writ petition are identical with W.P. No. 3642 of 1992. In this writ petition, the petitioner refers to the provisions of the Pondicherry Civil Courts Act, 1936 and particularly to Section 3 of the Act. The Judicial Service in Pondicherry, which is a Union Territory under the Constitution, is governed by the Pondicherry Judicial Service Rules, 1980, as amended from time to time (hereinafter referred to as the Rules). Part II of the Rules provides for the constitution and strength Of the service. Part III provides for the method of recruitment. Part IV provides for probation. Rule 3 provides that the Judicial Service shall consist of junior scale arid senior scale posts. The writ petition relates only to junior scale. The junior scale shall have two grades, viz., time scale grade (Grade II) and selection scale grade (Grade I). The posts in the time scale grade in the junior scale shall be civil posts Group B gazetted. All the other posts shall be civil posts Group A gazetted.
33. The affidavit also refers to the method of recruitment as provided under Rule 7 and Rule 10 which relates to constitution of a Selection Committee. Rule 11 provides for the qualification for direct recruits to the junior scale in the service. Rule 12 provides that the High Court shall, before making recommendation to the Administrator, invite applications by advertisement and may require applicants to give such particulars as it may prescribe and may further hold such tests as may be considered necessary. The Union Territory of Pondicherry is governed by Article 239 of the Constitution of India and hence, the same is administered by the President of India acting through the Lieutenant Governor of Pondicherry. Section 9 of the Pondicherry (Administration) Act, 1962, provides for the extension of the jurisdiction of the Madras High Court to the Union Territory of Pondicherry as and from 6.11.1962. By virtue of Section 10 of that Act, the High Court of Madras exercises jurisdiction over the Union Territory of Pondicherry. Article 234 of the Constitution of India provides for the recruitment of persons other than District Judges to the Judicial Service. Appointment of persons other than District Judges to the Judicial Service of a State shall be made by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State, Article 50 of the Directive Principles of State Policy provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. The affidavit also refers to the earlier writ petition filed by the petitioner in W.P. No. 3642 of 1992. The contentions raised in the earlier writ petition have again been reiterated in this affidavit. It is stated that the 3rd respondent is an usurper in the post of Judicial Officer, junior scale (Grade II) since he neither had the qualification for the said post nor the procedure adopted to bring about his appointment was legal.
34. The reasons for filing this writ petition belatedly have also been explained in paragraph 26 of the affidavit. There is no wilful delay on the part of the petitioner in presenting this writ petition for a writ of quo warranto since the information relating to the qualification of the 3rd respondent and the method adopted in bringing the appointment in question, were not made known, when his appointment was announced in the year 1984 with a specific reference on the recommendation of the High Court, Madras, I had no reason to doubt that the recommendation of the Hon'ble Court, Madras, could be not in accordance with the law. As a responsible citizen, I cannot move the Hon'ble High Court on mere suspicion, or doubt, that too to challenge the appointment of Judicial Officer by way of Writ of quo warranto.
35. It is further stated in the affidavit that the 3rd respondent never assumed office as a Judicial Officer, junior scale (Grade II) and got posting as Presiding Officer of a Court to discharge the judicial functions. As he was discharging non-judicial functions, there was no threat to the majesty of justice and to the dispensation of justice from the 3rd respondent, who was not qualified and not appointed in accordance with the procedure established by law. When the threat to the justice became a reality by the posting of the 3rd respondent to a judicial post in the rank of a Subordinate Judge, endowed with unlimited pecuniary jurisdiction and limited appellate powers, it has become an immediate necessity to file the present writ petition for a writ of quo warranto.
36. A detailed counter affidavit has been filed by respondents 1, 2 and 4 reiterating the same averments as in W.P. No. 3642 of 1992. It is again reiterated in this counter affidavit that the petitioner has not challenged the appointment of the 3rd respondent all these years and the impugned order dated 27.2.1992 is only a sequal to the notification issued on 2.7.1984 when the turn for promotion to the next grade of the 3rd respondent occurred. The petitioner is clearly guilty of laches and the writ petition is liable to be dismissed on this ground alone.
37. Paragraph 18 of the counter affidavit deals with the locus standi of the petitioner in maintaining the writ petition. According to the State Government, the writ petition is not sustainable since the Pondicherry Bar Association is not registered as a professional organisation or body and the petitioner cannot profess himself to be a representative of any such professional body and thus the petitioner lacks locus standi to file this writ petition. The counter affidavit also refers to the provisions of Rule 8 of the Pondicherry Judicial Service Rules, 1980, which deals with initial recruitment to the service. It also refers to Rules 9, 10, etc., and also other provisions of the Rules. It is stated that the contention of the petitioner that there was no possibility of selecting the 3rd respondent separately without application, without written examination and without personal interview or oral interview, has no force. The judicial posts in the Union Territories do not fall under the purview of the Union Public Service Commission. There is no violation of the directive principles in Article 50 of the Constitution of India.
38. The 3rd respondent has filed a separate counter affidavit in the present writ petition reiterating the same contentions which have been raised in W.P. No. 3642 of 1992.
39. W.P. No. 14035 of 1992: This writ petition has been filed by a practising lawyer of Pondicherry against the Union Of India, Registrar, High Court, Madras and five Other Judicial Officers including the 3rd respondent in the other two writ petitions, for a writ of quo warranto directing the respondents to show under what authority respondents 2 to 5 claim their appointments to the public offices included in junior scale (Grade II) and (Grade I) of the Pondicherry Judicial Service and consequently the posts respectively held by them on date and performing the duties connected thereto and enjoy the privileges relating therewith and to pass suitable orders.
40. Here again, the petitioner has elaborately dealt with the various provisions of the Rules. The Government of Pondicherry in G.O.Ms. No. 54/ 83-LLD, dated 25.7.1983 appointed, in pursuance of Sub-rule (1) of Rule 7 read with Sub-rule (1) of Rule 8 of the Rules and on the recommendations of the High Court of Madras, the following officers and Legal Advisers to Government to the Pondicherry Judicial Service at its initial constitution with effect from 17.12.1980 in the scale/grade and in the scale of pay noted against each, viz., Name of Officer Scale/Grade Scale of Pay
1. Dr. David Annoussamy Senior Scale Rs. 1200-50-1300-60-1600- EB-60-1900-100-2000
2. Mr. J. Gnany -do- -do-
3. Mr. A. Chandrasekhara Menon -do- -do-
4. Mr. S. Ramalingam -do- -do-
5. Shahoul Abdoul Hamid Junior Scale (Selection Grade) (Gr.I) Rs. 1100-50-1600
6. Mr. A. John Ambrose -do- -do-
7. Mr. R. Govindarajan -do- -do-
8. Mr. P. Prabhashankar -do- -do-
9. Mr. N. Krishnamurthy -do- -do-
10. Mr. G. Adimoulame Junior Scale (Grade II) Rs. 650-30-740-35-810 EB-35-880-40-1000-EB
-40-1200
11. Mr. B. Xavier -do- -do-
12. Mr. S. Nadamuni -do- -do-
13. Mr. P.A. Subramanian -do- -do-
14. Mr. E.V.Kumar -do- -do-
15. Mr. K.A. Prabhakara Rao -do- -do-
16. Mr. S. Murugaboopathy -do- -do-
17. Mr. R.Venkatavaradhan -do- -do-
41. Respondents 2 to 5 were holding judicial posts in Pondicherry having been appointed under the old Rules and the 6th respondent (3rd respondent in the other two writ petitions) was holding the post of Officer in Special Duty in Pondicherry at the time of the commencement of the Rules as amended viz., 17.12.1980. According to the petitioner, the names of respondents 2 to 6 had been sent to the High Court, Madras along with 17 persons referred to above, for the purpose of consideration for appointment under Rule 8 of the Rules as Judicial Officers and Legal Adviser to the Government as the case may be. The entire authorised strength of the service having been filled up by the above officers, there was no post available to respondents 2 to 6 for being appointed to the service at the initial constitution. By one more amendment made in Pondicherry Judicial Service (Amendment) Rules, 1983, published in Extraordinary Gazette No. 27, dated 9.11.1983, under G.O.Ms. No. 70/83-LLD, dated 3.11.1983, the Rules were further amended inter alia in respect of Rule 11. The said Amendment Rules of 1983 substituted Rule 11 by a new rule by which the qualification for direct recruits to the junior scale in the service has been modified as follows:
(a) must be a citizen of India;
(b) must have practised as an Advocate or must have held any post under the Central or State Governments or Union Territory Administrations, requiring knowledge of law for a period of not less than three years and must be not more than 32 years of age on the first day of January of the year in which his appointment is made.
42. The Government of Pondicherry by a further amendment to the rules made by the Pondicherry Judicial Service (Amendment) Rules, 1984, brought into effect from the date of publication of the Rules in the Official Gazette Extraordinary No. 7, dated 27.3.1984, made amendments to the Schedule to the Rules. By these amendments, the Government of Pondicherry increased the authorised permanent strength of the posts included in the junior scale, time scale (Grade II) from 8 to 10. After the above amendment of the Rules dated 9.11.1983 and 27.3.1984, the Government by a Notification in G.O.Ms. No. 31/84-LLD, dated 2.7.1984 appointed in pursuance of Sub-rule (1) of Rule 7 read with Rule 14 of the Rules, and on the recommendations of the High Court, Madras, respondents 2 to 6 to the junior scale (Grade II) of the Pondicherry Judicial Service. The said Notification further stated that the appointment of respondents 4 to 6 to the service was without prejudice to their officiation on other duties as Manager (Legal) in the Pondicherry Industrial Promotion, Development and Investment Corporation, Pondicherry, and Officer on Special Duty in the Law Department respectively.
43. In pursuance of the appointment to the junior scale (Grade II) of the service, the 2nd respondent was promoted temporarily to the junior scale (Grade I) of the service by an order dated 18.2.1988 and the 2nd respondent is continuing in the same grade and is functioning as Chief Judicial Magistrate, Pondicherry, the post included in junior scale (Grade I) of the service. By a Notification in G.O.Ms. No. 23/93-LLD, dated 1.6.1992, the 3rd respondent was promoted to the junior scale (Grade I) of the service with effect from 19.11.1991 forenoon and is now functioning as the First Addl. Sub Judge, Pondicherry. By the same Notification dated 1.6.1992, the 4th respondent was promoted to junior scale (Grade 1) of the service with effect from the forenoon of 11.12.1991 and has been thereafter deputed to the Law Department as Director of Prosecution and is now functioning in the said post. By G.O.Ms. No. 41/92-LD, dated 29.6.1992, the 5th respondent was promoted to the junior scale (Grade I) of the service with effect from the forenoon of 27.2.1992 without prejudice to his appointment on deputation to the Pondicherry Textiles Corporation Limited as Law Officer in the Office of the Legal Adviser (Government Undertakings), Pondicherry. By the same Notification, the 6th respondent was promoted to the junior scale (Grade I) of the service with effect from 27.2.1992 and posted as Special Officer-cum-Sub Judge (Second Addl.), Judicial Department, Pondicherry. The 6th respondent has been recently deputed as Commissioner of Payments under the Anglo French Textiles (Transfer of Undertaking) Act, 1986.
44. It is submitted by the petitioner that all these promotions and postings are based on the original appointment of respondents 2 to 6 to the Pondicherry Judicial Service by a Notification issued in G.O.Ms. No. 31/84-LLD, dated 2.7.1984. After the initial recruitment to the service made under Sub-rule (1) of Rule 8 of the Rules, made in Notification issued in G.O.Ms. No. 54/83-LLD, dated 25.7.1983, there was no invitation of applications by advertisement and no selection was made by the High Court following the procedure under Rule 12 of the said Rules. Respondents 2 to 6 have also not been appointed at the initial constitution made under Sub-rule (1) of Rule 8 as per the above Government Order dated 25.7.1983. Such an initial recruitment having been contemplated only as a one time measure, respondents 2 to 6 could not have been appointed under Rule 8. Their appointment is clearly a recruitment made after the initial constitution falling under Rule 9 of the Rules and ought to have been made following the procedure envisaged under Rule 12 of the Rules. Respondents 2 to 6 having been appointed without invitation of applications or conduct of tests or interview by the High Court as envisaged under Rule 12 of the Rules, are usurpers to the office to which they were appointed by the Notification issued in G.O.Ms. No. 31/84-LLD, dated 2.7.1984. By virtue of their appointment in the junior scale (Grade II) of the service, respondents 2 to 6 have been promoted to the selection grade (Grade I) of the junior(sic) and pursuant thereto have been appointed to hold their respective posts on date in the Judicial Department or as the case may be, in other departments on deputation. Having regard to the fact that the recruitment to the junior scale (Grade II) of the service was not in accordance with the Rules, respondents 2 to 6 are not entitled and have no legal authority to hold the post which they are at present holding.
45. The 1st respondent, Union of India through the Secretary to Government, Law Department, Government of Pondicherry, has filed a counter affidavit. Similar contentions as raised in the counter affidavit filed in the other two writ petitions, have again been reiterated in this counter. After narrating the facts, the counter proceeds further to slate that pursuant to the appointment made by notification dated 2.7.1984, respondents 2 to 6 have been given promotion to the select ion grade of the junior scale of the Pondicherry Judicial Service and are either holding the promotion post in the service or have been appointed on deputation to comparable ex-cadre posts. It is at this stage, the petitioner has filed the above writ petition for issue of a writ of quo warranto. It is stated that respondents 2 to 6 were appointed to the junior scale (Grade II) of the Pondicherry Judicial Service as early as 8.5.1984 and their appointments were duly notified in G.O.Ms. No. 31/84-LLD, dated 2.7.1984. The petitioner had not chosen to challenge the above appointments all these years. Consequent on the appointment of respondents 2 to 6 to the Pondicherry Judicial Service, they have been promoted to higher posts in the junior scale (Grade 1) of the service and respondents 4 to 6 have also been appointed on deputation in ex-cadre posts respectively as Director of Prosecution, Law Officer in the Office of the Legal Adviser (Government Undertakings) and Commissioner of Payments. All these appointments are only sequel to their initial appointment to the junior scale (Grade II) of the Pondicherry Judicial Service done in May, 1984. The petitioner is, therefore, guilty of laches and after having kept quiet all these years, the petitioner cannot seek to interfere with the vested rights of respondents 2 to 6 by praying for issue of a writ of quo warranto.
46. According to the 1st respondent, as per Rule 8 of the Rules, for initial recruitment to the service, the High Court shall recommend to the Administrator suitable persons for appointment to the service from among the Judicial Officers and Legal Advisers to the Government in service in the Union Territory of Pondicherry at the commencement of these rules and the High Court may at its discretion examine the character rolls and hold such other tests as may be deemed fit. Inasmuch as respondents 2 to 5 were already holding judicial posts in the Union Territory of Pondicherry and the 6th respondent was holding the post of Superintendent (Legal) and later that of Officer on Special Duty in the Law Department, which posts involved duties of rendering legal advice to the Government, etc., they were also considered for appointment to the service at the initial constitution. As they could not be appointed for want of cadre posts, they were subsequently taken up for consideration and appointed to the service. It is pertinent to point out that Rule 9 of the initial recruitment shall be made by direct recruitment from the Bar and also from service provided they are otherwise found eligible by the Selection Committee. As there were officers both in the Judiciary and in the Law Department, who were eligible to be considered at the time of initial constitution but who could not be inducted into the service for want of posts within the sanctioned cadre strength of the service, the High Court considered them later and appointed them. The Selection Committee constituted under Rule 10 of the Rules considered respondents 2 to 6, who could not be inducted at the time of initial constitution in 1983, and selected them for encadrement to the junior scale (Grade II) of the Pondicherry Judicial Service later when the vacancies arose. Inasmuch as the selection was thus confined to the services, the question of calling for applications by advertisement in the newspapers, etc. did not arise.
47. Rules 9 and 12 of the Rules will have application only if the High Court has to select persons from the open market. The circumstances under which respondents 2 to 6 were selected, as already explained, were peculiar, in that they were very much eligible to be considered for initial recruitment but could not be inducted into the service for want of vacancies. It was in view of this peculiar situation, the Government of Pondicherry and the High Court, Madras, took a conscious decision to confine the selection to those who were already in service but who were left out of the initial constitution for want of vacancies. As a matter of fact, there is a power vested in the Lieutenant Governor to relax the rules with respect to any class or category of persons, under Rule 32 of the Rules. While it is so, the petitioner cannot be heard to contend that the appointment of respondents 2 to 6 to the Pondicherry Judicial Service junior scale (Grade II) was in violation of Rule 12 read with Rule 9 of the Rules. According to the 1st respondent, respondents 2 to 6 had possessed the qualifications prescribed under the Pondicherry Judicial Service for appointment to junior scale (Grade II) on the date on which the rules came into force and also at the time at which their Selection and appointment were made. Hence, respondents 2 to 6 are persons qualified under the Rules to hold the junior scale (Grade II) posts in the Pondicherry Judicial Service. Their promotion to junior scale (Grade I) and deputation to other ex-cadre posts are legally valid and by no stretch of interpretation respondents 2 to 6 could be construed as usurpers in their respective posts.
48. On behalf of respondents 2 to 5, the 4th respondent G. Patric filed a counter affidavit. According to him, the writ petition is not maintainable for the reason that the petitioner had no locus standi to pray for a writ of quo warranto. W.P. Nos. 3642 and 9391 of 1992 have been filed by the Secretary of the Pondicherry Bar Association : against the Union of India and others for a writ of certiorari and writ of quo warranto respectively. In W.P. No. 9391 of 1992 when the Bar Association has restricted the relief in so far as the appointment of the 3rd respondent Edward Kumar therein alone is concerned, and inasmuch as the Bar Association has categorically averred that the other respondents (respondents 2 to 5) have been dis-charging judicial functions since 1975-80, a member of the Bar Association practising in Pondicherry Courts viz., the petitioner herein had no locus standi to seek for a writ of quo warranto and hence this writ petition is liable to be dismissed. The petitioner has impleaded respondents 2 to 6 in this single writ petition and prayed for a writ of quo warranto against each respondent. Each respondent has been appointed by a separate and independent order and therefore, the cause of action in respect of each contesting respondent is different and as such, a single writ petition is not maintainable.
49. The writ petition lacks in bona fide and it does not refer to any legal injury caused to the public or to the Government or to any individual ever since their appointment in the erstwhile Judicial Department and subsequently also after their induction to the Pondicherry Judicial Service. The present writ petition is hit by acquiescence and estoppel and on that score also, the writ of quo warranto, which is a discretionary relief and which is not issued as a matter of right, has to be refused. Respondents 2 to 5 were selected by properly constituted Selection Committee and appointment in accordance with the recruitment rules which were prevalent at the time of their appointment (prior to the formulation of the Pondicherry Judicial Service). The Pondicherry Judicial Service Rules were (framed by the Lieutenant Governor of Pondicherry, in consultation with the High Court, Madras. It does not supersede the previous rules framed under Article 309 of the Constitution of India. Therefore, the service conditions of respondent 2 to 5 like the method of appointment, probation, confirmation and seniority are governed by the rules which were prevalent at the time of recruitment. -
50. Respondents 2 to 5 were placed on probation for two years since their appointment in the Judicial Department, Pondicherry. The earlier appointments hold good and they are valid in law. The induction to the Pondicherry Judicial Service on 2.7.1984 cannot wipe out the earlier selection and they cannot be termed as usurpers of judiciary without legal authority. The counter affidavit also furnishes the service particulars of respondents 2 to 5. The Government of Pondicherry constituted a new service for the Judicial Officers in the Union Territory of Pondicherry in exercise of the powers conferred by Proviso to Article 309 of the Constitution of India. The Lieutenant Governor of Pondicherry in consultation with the Madras High Court issued a Notification framing the rules called the Pondicherry Judicial Service Rules, 1980. The said Rules do not have the constitutional backing and the same cannot be applied to the Judicial Officers appointed under the old recruitment rules. In any event, Rule 25 of the said Rules, contemplates that at the time of initial recruitment to the Pondicherry Judicial Service, the consent of the officers serving in the existing Judicial Department of Pondicherry have to be obtained for bringing them under the Pondicherry Judicial Service. Accordingly, respondents 2 to 5 have given their consent for such inclusion in the judicial service. Therefore, it is apparent that the 1st respondent desired to induct such Judicial Officers to the Pondicherry Judicial Service without resorting to the procedure contemplated for regular appointment. Respondents 2 to 5 constitute a class or a category of persons who have already undergone the process of selection under the old recruitment rules and their annual confidential reports were available in respect of their capacity to function as Judges. Therefore, the Government of Pondicherry and the High Court, Madras, thought it fit that in so far as respondents 2 to 5 were concerned, the process of selection need not be undergone because they have already been selected and appointed under the old rules. Once a person has been selected after undergoing the process of selection and has been appointed to the vacant post which existed at that time, he cannot be asked to undergo the process again, which amounts to double jeopardy.
51. It is stated that as on to-day, respondents 2 to 5 are holding the posts of junior scale (Grade I) in the Pondicherry Judicial Service, which is equivalent to Subordinate Judges. They were appointed under the old rules and they have already acquired the status of permanent Judges and therefore, they were found fit for promotion as Junior scale (Grade I), and on the recommendation of the High Court, they were promoted as Subordinate Judges. Even assuming that the said Notification of the year 1984 is illegal, their status as permanent Judges under the old recruitment rules remains and they can continue as Judges. The Courts in Pondicherry have been created under the Pondicherry Civil Courts Act and not under the Pondicherry Judicial Service Rules, 1980, and they can be presided over by Judicial Officers recruited earlier in Pondicherry Judicial Department. In such a case, their continuance as Judges is not affected and they cannot be named as usurpers. The writ of quo warranto has to be dismissed on this ground also.
52. Even though respondents 2 to 5 have been inducted into Pondicherry Judicial Service-vide Notification dated 2.7.1984, along with the 6th respondent Edward Kumar, and if this Court finds that the 6th respondent as having been not properly inducted to the Pondicherry Judicial Service from his executive post of Officer on Special Duty, Law Department, yet, the said Notification pertaining to respondents 2 to 5 is sustainable and it will not be offending the constitutional provisions. The impugned notification has been acted upon publicly and respondents 2 to 5 have been diligently discharging their duties as Judicial Officers from 1975-80 and that they have also been promoted to the level of Subordinate Judges as junior scale (Grade I) officers in the Pondicherry Judicial Service on 27.2.1992. Balance of convenience is in their favour and therefore, there is no merit in the prayer for quo warranto.
53. The 6th respondent has reiterated the very same contentions raised in the counter affidavits filed in the other two writ petitions. Hence, I do not think it necessary to repeat them here also.
54. The 7th respondent has not filed any separate counter affidavit in this writ petition.
55. I have heard Mr. G. Masilamani, learned senior counsel for the petitioners in W.P. Nos. 3642 and 9391 of 1992, Mr. S. Mahimai Raj, learned Counsel for the petitioner in W.P. No. 14035 of 1992, Mr. R. Krishnamurthi, learned senior counsel for respondents 1,2 and 4 in W.P. Nos. 3642 and 9391 of 1992 and for the 1st respondent in W.P. No. 14035 of 1992, Mr. R. Muthukumaraswami, learned Counsel for the 3rd respondent in W.P. Nos. 3642 and 9391 of 1992 and 6th respondent in W.P. No. 14035 of 1992, Mr. N.R. Chandran, learned senior counsel for respondents 2 to 5 in W.P. No. 14035 of 1992 and Mr. A.S. Venkatachalamoorthy, learned Special Government Pleader for the 5th respondent in W.P. Nos. 3642 and 9391 of 1992 and the 7th respondent in W.P. No. 14035 of 1992. The matter was argued at length by the learned Counsel appearing for the respective parties.
56. All the three writ petitions raise common questions relating to the validity of the orders of the Government of Pondicherry dated 2.7.1984 and 27.2.1992. While the first two writ petitions viz., W.P. Nos. 3642 and 9391 of 1992 question, the validity of the aforesaid orders relating to the 3rd respondent Mr. Edward Kumar, the third writ petition viz., W.P. No. 14035 of 1992 questions the aforesaid orders relating to the appointment of five persons viz., Mrs. S.R. Pushpavalli, Mr. L. Veeranath Rao, Mr. G. Patric, Mr. G. Rajasuria and Mr. V.A.Edward Kumar, who are respondents 2 to 6 in W.P. No. 14035 of 1992, who have been appointed to Grade II junior scale of the Pondicherry Judicial Service and promoted to junior scale Grade I by the said orders respectively.
57. Let me first deal with W.P. Nos. 3642 and 9391 of 1992 and then come to W.P. No. 14035 of 1992.
58. The two impugned orders are reproduced hereunder:
7th July, 1984 LAW GAZETTE
Government of Pondicherry
Law and Labour Department
(G.O.Ms. No. 31/84-LLD, dated 2nd July, 1984)
NOTIFICATION
In pursuance of Sub-rule (1) of Rule 7 read with Rule 14 of the Pondicherry Judicial Service Rules, 1980 and on the recommendations of the High Court, Madras, the Lieutenant Governor of Pondicherry hereby appoints the following persons to the Junior Scale (Grade II) of the Pondicherry Judicial Service in the scale of Rs. 650-30-740-35-810-EB-35-880-40-1000-EB-40-1200 with effect from 8th May, 1984, namely,
1. Tmt. S.R. Pushpavalli.
2. Thiru L. Veeranath Rao.
3. Thiru G. Patric,
4. Thiru G. Rajasuria.
5. Thiru V.A. Edward Kumar
2. The appointment of Thiru G. Patric and Thiru V.A. Edward Kumar to the said service is without prejudice to their officiating on other duty as Manager (Legal) in the Pondicherry Industrial Promotion Development and Investment Corporation and Officer on Special Duty in the Law Department, Pondicherry, respectively.
(By order of the Lieutenant Governor) (Sd.) A. Chandrasekhara Menon, Secretary to Government.
-----
Government of Pondicherry
Law and Labour Department
No. 59/SPA/92-LD Pondicherry, 27th February 1992.
OFFICE ORDER
Sub:- Pondicherry Judicial Service - Promotion, postings and transfers - regarding.
Thiru R. Venkatavaradhan, Special Officer in the Judicial Department, Pondicherry, is transferred and posted as the Principal Subordinate Judge, Pondicherry, vice Tmt. Pushpa Duraiswami transrferred.
Tmt Pushpa Duraiswami, Principal Subordinate Judge, Pondicherry, is transferred and posted as Chief Judicial Magistrate, Pondicherry, vice Thiru S. Murugaboopathi transferred. Thiru S. Murugaboopathy, Chief Judicial Magistrate, Pondicherry, is transferred and posted as Subordinate Judge, Mahe, vice Thiru E.V. Kumar promoted.
Thiru L. Veeranath Rao, Additional Subordinate Judge, Pondicherry, is designated as First Additional Subordinate Judge, Pondicherry.
On the recommendations of the High Court, Madras, Thiru G. Rajasuria, a Junior Scale Grade II Officer of the Pondicherry Judicial Service is promoted to the Junior Scale Grade I of the said service with immediate effect in the scale of pay of Rs. 3,000-100-3,500-125-4,500 without prejudice to his appointment on deputation to the Pondicherry Textile Corporation Limited as Law Officer in the office of the Legal Adviser (Government Undertakings), Pondicherry.
On the recommendations of the High Court, Madras, Thiru V.A. Edward Kumar, a Junior Scale Grade II Officer of the Pondicherry Judicial Service, at present officiating as Deputy Secretary to Government in the Law Department is promoted with immediate effect to the Junior Scale Grade I of that service in the scale of pay of Rs. 3,000-100-3,500-125-4,500 and posted as Special Officer-cum-Subordinate Judge (Second Additional), Judicial Department, Pondicherry, vice Thiru R. Venkatavaradhan, Special Officer transferred. He will deal with such matters falling under the jurisdiction of the Subordinate Judge's Court as are assigned to him by the Principal District Judge, Pondicherry, from time to time, by virtue of the Notification issued in No. 4355/74-LLD.I dated 17th January, 1975, as amended by Notification issued in G.O.Ms. No. 60/90-LLD dated 13th August, 1990, of the Law and Labour Department, Pondicherry.
Thiru R. Venkatavaradhan shall move first.
(By order of the Lieutenant Governor) (Sd.) A. Chandrasekahara Menon.
Secretary to Government (Law).
59. Several contentions were raised by the learned Counsel for the petitioners challenging the impugned orders mentioned above. The first head of challenge raised by Mr. G. Masilamani, learned Senior Counsel for the petitioners is that the 3rd respondent Edward Kumar is unqualified. He invited my attention to the admission made in the counter affidavit of respondents 1,2 and 4 (page 29 of the counter affidavit in W.P. No. 9391 of 1992) and also by the learned Senior Counsel for these respondents, that the 3rd respondent's appointment was made by way of "Additional Initial Recruitment". But, in page 33 of the same counter affidavit, contradictory stand was taken to the effect that the 3rd respondent's recruitment was made under Rule 9 of the Rules (Regular Recruitment).
60. Before I proceed further, it is relevant and useful to extract certain Rules from the Pondicherry Judicial Service Rules, 1980, (G.O.Ms. No. 1/ 80-LLD, dated 10.1.1980) published in Extraordinary Gazette No. 12 dated 23.1.1980, issued by the Government of Pondicherry, Law and Labour Department. In exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India read with the Government of India, Ministry of Law, Justice and Company Affairs (Department of Justice) Notification No. 30/16/76-Jus., dated 31.8.1979, and all other powers enabling him in this behalf, the Lieutenant Governor of Pondicherry, in consultation with the High Court, Madras is pleased to make this rule called Pondicherry Judicial Service Rules, 1980. As per Rule 1 (2), the Rules shall come into force from the date of publication in the Official Gazette viz., 23.1.1980. Three important definitions are also to be noticed in the context of this case. They are, Rule 2(c) "High Court" means the High Court of Madras; Rule 2(e) "Service." means the Pondicherry Judicial Service; and Rule 2(g) "initial recruitment" means the first recruitment and appointment made to the service immediately after the commencement of these rules.
61. The following rules are also extracted to appreciate the contentions of the respective parties:
Rule 3: (1) On and from the date of commencement of these rules, there shall be constituted a Civil Service to be known as the Pondicherry Judicial Service.
(2)(a) The service shall have a junior scale and a senior scale
(b) The junior scale shall have two grades, namely:
(i) Time Scale grade (Grade II); and
(ii) Selection scale grade (Grade I).
(c) The posts in the time scale grade in the junior scale shall be civil posts Group 'B', Gazetted; all the other posts shall be civil posts Group 'A', Gazetted.
Rule 7(1): The recruitment of personnel in the junior time scale grade (Grade II) and the appointment by transfer on deputation or direct recruitment, if any, in the senior scale shall be made by the Administrator on the recommendation of the High Court.
(2) The promotion from one scale to another and from one grade to another shall be made by the Administrator on the recommendation of the High Court.
(3) If no suitable candidate is available for promotion to posts vacant in the senior scale, those posts shall be filled by transfer on deputation of judicial officers holding analogous posts in the State of Tamil Nadu, failing which through direct recruitment.
Rule 8: (1) For initial recruitment to the service, the High Court shall recommend to the Administrator, suitable persons for appointment to the service from amongst the Judicial Officers and Legal Advisers to Government in service in the Union Territory of Pondicherry at the time of commencement of these rules.
(2) The High Court may at its discretion examine the character rolls and hold such other tests as may be deemed fit.
(3) The seniority of the candidates appointed at the initial constitution shall be in accordance with the length of service rendered by them in the cadre to which they belong at the time of their initial recruitment to the service provided that the inter se seniority as already fixed in such cadres shall not be altered.
Rule 9: Regular recruitment: Recruitment after the initial recruitment shall be made by direct recruitment from the Bar and also from services provided they are otherwise found eligible by the Selection Committee.
Rule 10: The Selection Committee shall consist of the following:
(1) Chief Justice or Judge of the High Court deputed by him.
(2) Chief Secretary, Pondicherry Administration, Pondicherry.
(3) Secretary, Law Department, Pondicherry.
(4) Head of the Judicial Department, Pondicherry.
Rule 11: (1) The qualification for direct recruits to the junior scale in the service shall be as follows, namely:
(a) must be a citizen of India;
(b) must have practised as an advocate or must have held any post under the Central or State Governments or Union Territory Administrations requiring knowledge of law, for a period of not less than three years; and
(c) must be not more than 32 years of age on the first day of January of the year in which his appointment is made.
(2) The qualification for direct recruits to the senior scale in the service shall be as follows, namely:
(a) must be a citizen of India;
(b) must have practised as an advocate or must have held any post under the Central or State Governments or Union Territory Administrations requiring special knowledge of law, for a period of not less than ten years; and
(c) must have attained the age of 35 years and not attained the age of 45 years on the 1st day of January of the year in which his appointment is made.
Rule 12: The High Court shall, before making recommendations to the Administrator, invite applications by advertisement and may require the applicants to give such particulars as it may prescribe and may further hold such tests as may be considered necessary. Rule 14: (1) Persons appointed to the service at the initial recruitment shall stand confirmed with effect from the date of appointment, (2) All other candidates on appointment to the service shall be on probation for a period of two years.
Rule 18: (1) The Administrator may create temporary posts in the service. (2) Such posts shall be filled in the same manner as permanent posts.
Rule 19: Notwithstanding anything contained in these rules, the Administrator may, in consultation with the High Court, fill up any vacancy in the service by making temporary . appointment thereto.
Rule 26: Direct recruits will have to produce before appointment, a certificate of physical fitness in accordance with the standard prescribed for the Indian Administrative Service, and shall pass during the period of probation such departmental examinations and undergo such training as may be prescribed.
Rule 30: Interpretation: If any question arises as to the interpretation of these rules, the same shall be decided by the Administrator in consultation with the High Court.
Rule 31: On the commencement of these rules, and until persons are appointed to hold cadre posts in accordance with the provisions of these rules, such posts may continue to be held by officers appointed thereto either before or after the commencement of these rules as if these rules have not come into force.
Rule 32: Power to relax: Where the Lieutenant Governor is of the opinion that it is necessary or expedient so to do, he may, in consultation with the High Court, by order, for reasons to be recorded in writing, relax with prospective effect any of the provisions of these rules with respect to any class or category of persons.
62. Rule 8 extracted above provides for initial recruitment and it prescribes that a person to be appointed under the said Rules should be (a) Judicial Officer, or (b) Legal Adviser to the Government in service in the Union Territory of Pondicherry at the time of commencement of these rules. Rule 1 (2) provides that the Rules shall come into force from the date of its publication in the Official Gazette. The Rules were published in the Official Gazette on 23.1.1980 and it is that date which is crucial for testing the qualification of the eligible candidates.
63. It is seen from the counter affidavit of respondents l, 2 and 4 that they admit that Legal Advisers to Government are those persons who hold the post of (a) Secretary to Government, Law Department; (b) Deputy Secretary to Government, Law Department; (c) Under Secretary to Government, Law Department; and (d) Officer on Special Duty, Law Department. On 23.1.1980, the date of commencement of the Rules, admittedly the 3rd respondent Edward Kumar was only holding the post of Superintendent (Ad hoc), Law Department and he was appointed as an Officer on Special Duty (O.S.D.) (Codification) (Adhoc) only on 7.3.1980, i.e., long after the commencement of the Rules. Even as per the admission of respondents 1, 2 and 4, the 3rd respondent was not a Legal Adviser to Government on the crucial date viz., the date of commencement of the Rules, Hence, I am of the view, that the 3rd respondent was not qualified and eligible for initial recruitment under the Rules viz., Rule 8.
64. In the counter affidavit filed on behalf of the 5th respondent, it is categorically stated that the 3rd respondent became a Legal Adviser only subsequent to his appointment as junior scale (Grade II), Pondicherry Judicial Service. Therefore, his appointment to the post of junior scale (Grade II), Pondicherry Judicial Service was contrary to Rule 8 of the Rules, he being ineligible and unqualified. It is stated in page 10 of the counter affidavit of respondents 1, 2 and 4 in W.P. No. 3642 of 1992, that the 3rd respondent's consent was obtained for joining Pondicherry Judicial Service and thereafter his name was sent for initial recruitment. But it is seen from the file that his consent was obtained on 16.6.1984 only after the selection by the committee in its meeting dated 7.1.1984 and the recommendation of the High Court dated 8.5.1984.
65. That apart, the post of Superintendent, Law Department, is a non-gazetted Group 'C' post as on 23.1.1980, viz., the date of commencement of the Rules, until it was upgraded as Gazetted Group 'B' post in R.R. dated 18.9.1980, whereas the post of junior scale (Grade II), Pondicherry Judicial Service, is a Gazetted Group 'B' post. Therefore, the post of Superintendent, Law Department and the post of junior scale (Grade II), Pondicherry Judicial Service were not equal posts and hence, the appointment of the 3rd respondent as junior scale (Grade II), Pondicherry Judicial Service, would only mean that he was promoted and posted in Pondicherry Judicial Service out of turn without adopting the procedure for promotion, that too, in a different service, as rightly contended by Mr. G. Masilamani, learned Senior Counsel for the petitioners. The initial recruitment is not a recruitment made after calling for application, by way of open competition selection, on merit, unlike regular recruitment under Rule 9 of the Rules. Persons holding lower posts that too temporarily, cannot be appointed in higher posts by resorting to the method of initial recruitment under Rule 8. Initial recruitment to a service is analogous to regularisation of, existing, eligible officers, in the corresponding position, in the newly created service. Therefore, the provision relating to initial recruitment in the New Recruitment Rules cannot be pressed into service to appoint a person holding a lower post temporarily in the Law Department in a higher post in the Pondicherry Judicial Service on a permanent basis as if Pondicherry Judicial Service was inferior to the Law Department.
66. That apart, the appointment of the 3rd respondent to junior scale (Grade II), Pondicherry Judicial Service, also amounts to promoting him outside his department merely because he was holding a Degree in Law. The post of O.S.D. is the next higher post to the post of Superintendent in the Law Department, which post was equivalent to the post of junior scale (Grade II), Pondicherry Judicial Service. For promotion to the post of O.S.D. as per the recruitment rules, a candidate should possess a Degree in Law and three years experience in the Law Department. The 3rd respondent was not even qualified for promotion as O.S.D. in the Law Department itself since he did not possess the required three years experience in the feeder post on the crucial date viz. 23.1.1980 since he was appointed as a Superintendent only on 20.3.1978. As a matter of fact, even when the 3rd respondent was actually promoted on a later date viz., on 8.3.1980 as O.S.D., even then he was not qualified for that post and the said fact was also recorded in the files relating to his promotion as "not qualified". A person, who was not even qualified for promotion even in his parent department was indirectly promoted and appointed to a higher post of junior scale (Grade II), Pondicherry Judicial Service, which was equal to the post of O.S.D. in the Law Department. This, in my view is clearly an improper and irregular recruitment.
67. The appointment of the 3rd respondent in the post of junior scale (Grade II), Pondicherry Judicial Service, by invoking Rule 8 is also bad since the initial recruitment was already done by recruiting 16 seniormost Judicial Officers and one Legal Adviser to Government, viz. the then and the present Law Secretary to Government who is the deponent to the counter affidavit of respondents 1,2 and 4. Hence, I am of the view that there can be only one initial recruitment to the service. Rule 2(g) defines ''initial recruitment" as the first recruitment to the service. There cannot be two first recruitments either simultaneously or one after another, in whatever name the subsequent recruitment is called either as supplemental or additional recruitment. If so done, there shall be no meaning for the existence of Rules 2(g) and 8.
68. Rule 8 is a transitional provision. It works itself out as soon as the first recruitment is over. Thereafter, Rule 8 even though continues in the statute book, shall cease to have effect, use and force for being invoked for the second or third time. Initial recruitment having been made in respect of the entire sanctioned strength of the service (17 officers), there cannot be a subsequent/second initial recruitment in respect of the same posts as and when vacancies arise in the said post on account of retirement etc., of initially recruited officers. If second initial recruitment is allowed, it would amount to double initial recruitment for one post. Rule 8 cannot be used even for recruiting all the qualified and eligible persons available as on the date of commencement of the Rules, who were not included in the initial recruitment for whatever reason, by resorting to second and third initial recruitment, since this is not the scope and object of Rule 8. Rule 8 can be used only once to fill up the sanctioned strength of the service from amongst the available and eligible officers. It cannot be used to recruit all eligible officers (as on the date of commencement of the Rules) against past, present and future vacancies as stated in the counter-affidavit of respondents 1,2 and 4. Even then, the 3rd respondent being ineligible and unqualified on the date of the commencement of the Rules, cannot be recruited to the service even by way of second or third initial recruitment. Hence, the appointment of the 3rd respondent as junior scale (Grade II) in Pondicherry Judicial Service shall be a clear violation of the mandatory requirement of Rule 8 of the Rules.
69. Mr. R. Krishnamurthi, learned Senior Counsel appearing on behalf of the Union Territory of Pondicherry, at the time of argument and before entering upon the questions in issue, sets out a few facts, which according to him, may be relevant for determining the questions (hat arise for determination in these writ petitions. The facts and contentions set out by him are as follows:
Pondicherry, which was a French Settlement in India, came to be merged in India dejuere with effect from 16.8.1962 and thereafter came , to be the part of Union Territory of Pondicherry. The Parliament enacted a law called the Pondicherry Administration Act, provide for the Administration of the Union Territory of Pondicherry comprised of the erstwhile French establishment at Pondicherry, Karaikkal, Mane and Yanam. As per the said Act, the jurisdiction of the Madras High Court was extended to Pondicherry in relation to the matters provided in the said Act. It was in 1966 that the Pondicherry Government enacted a law called the Pondicherry Civil Courts Act, 1966, providing for the categories of courts in Union Territory of Pondicherry and also providing that the appointments to the posts of various categories of Judges shall be made in accordance with the rules framed under Article 309 of the Constitution of India. The appointments to the various Judicial Officers posts were thus made in accordance with the rules issued under Article 309 of the Constitution of India. During 1979, the Government of Pondicherry considered the question of constituting a regular organised service for Judicial Officers in the Union Territory of Pondicherry. After deliberations and consultations with the Madras High Court, the Pondicherry Judicial Service Rules, 1980, was made by a Government Order dated 10.1.1980. The same was notified in the Gazette on 23.1.1980. Since the schedule to the rules was not correctly drawn up and required extensive modification, an amendment to the rules was issued and notified on 17.12.1980. As per the said rules, the Pondicherry Judicial Service was to comprise of two scales-senior scale and junior scale. The junior scale comprised of two grades, viz. V Grade land Grade II. The recruitment to the service was provided for in Rule 7 of the Rules, according to which recruitment of personnel in the junior scale (Grade II) was to be made by the Administrated on the recommendations of the High Court. Rule 8 contemplates an initial recruitment to the service which has been defined in Rule 2(g), viz. the first recruitment after the commencement of the Rules. Rule 9 provides for recruitment after the initial recruitment from the Bar and the service. Accordingly, after the rules were notified and amended in December, 1980, the Government of Pondicherry prepared a list of eligible and suitable persons as on 17.12.1980 for consideration for appointment under Rule 8 of the Rules. The list of persons included all the Judicial Officers who were in service as on 17.12.1980, who were appointed under the earlier Rules (which included the other respondents in W.R. No. 14035 of 1992), and also the Legal Advisers of the Government of Pondicherry in service as on 17.12.1980, which included Edward Kumar, who was holding the post of Officer on Special Duty in the Law Department. The High Court considered the case of all such persons and taking into account the number of vacancies in Pondicherry Judicial Service, recommended the names of 17 persons for the 17 vacancies for appointment under Rule 8 of the Rules. It may be stated that though the 3rd respondent and the other respondents in W.P. No. 14035 of 1992 were qualified for appointment at the initial recruitment to the service, they were not appointed for want of vacancies. Based on the recommendations, the Administration passed orders appointing the 17 persons by order dated 25.7.1983 in G.O.Ms. No. 54. It may be noted that before the initial recruitment was made and orders issued on 25.7.1983, vacancies had arisen in various posts. Taking note of the fact that no regular recruitment could be made before the initial recruitment under Rule 8, the Government initiated action and passed orders appointing four persons in June, 1983 temporarily as District Munsifs under Rule 31 of the Rules. Since the initial recruitment itself was made nearly three years after the Rules, vacancies had arisen in the meanwhile. The Government, taking note of the fact that there had been six left out officers, who were eligible to be recruited under Rule 8, and also four of the later entrants, who were appointed temporarily, recommended their names numbering ten for appointment under the Rules. The ten officers comprised of four Judicial Officers who were in service as on 17.12.1980 but who were not appointed under Rule 8 for want of vacancies, two Legal Officers including the 3rd respondent Edward Kumar, who also could not be appointed under Rule 8 for want of vacancy and four Judicial Officers appointed in June, 1983 under Rule 31 of the Rules before the initial recruitment As per the Rules, the first six officers could have been appointed under Rule 8, but were not appointed for want of vacancies. There were four other Judicial Officers appointed in the meanwhile who were in service at the time of initial recruitment. Therefore, their cases were submitted for consideration for appointment under the Rules. The said cases were considered by following the procedure contemplated under Rule 9 of the Rules. The Selection Committee contemplated under Rule 10 considered their cases, who were suitable for recruitment under Rule 9 and found eligible. The High Court considered their cases along with the views of the Selection Committee and recommended the names of nine candidates for appointment under the Rules. Based on the said recommendations, the Administrator had issued two orders. The first is G.O.Ms. No. 31, dated 2.7.1984 appointing five persons including the 3rd respondent Edward Kumar to the post of Judicial Officers, junior scale (Grade II). The said five persons comprise of four judicial officers, who were appointed prior to the Rules under the old Rules and who could not be accommodated under the original order dated 25.7.1983, and the 3rd respondent Edward Kumar, who was also eligible but could not be appointed under Rule 8 under the order dated 25.7.1983. By another order of the same day, G.O.Ms. No. 32, dated 2.7.1984, four other persons have been appointed under Rule 19 on a temporary basis. These persons comprise of the four persons who were appointed in June, 1983, under Rule 31 Of the Rules, pending initial recruitment for various vacancies.
70. Thus, it is argued by Mr. R. Krishnamurthi, learned Senior Counsel for the contesting respondents, that from the facts stated above, that the five officers appointed under G.O.Ms. No. 31, dated 2.7.1984 were eligible to be appointed under Rules 8 of the Rules, but could not be appointed for want of vacancy and therefore were termed by the respondents in the files as supplementary to the initial recruitment. But, it would be seen that they have been appointed following the procedure under Rule 9 of the Rules, they being fully qualified and eligible under the said Rules. The 3rd respondent Edward Kumar, who was appointed as junior scale (Grade II) in the Pondicherry Judicial Service, was holding the post of officer on Special Duty at that time and he was allowed to continue in the post. Later on, the cases of all the officers including the 3rd respondent were considered for promotion to the post of junior scale (Grade I), Pondicherry Judicial Service, and by order dated 27.2.1992, they were promoted to junior scale (Grade I), Pondicherry Judicial Service. It is at that stage the three writ petitions have been filed questioning both the orders dated 2.7.1984 and 27.2.1982.
71. As regards the contention of Mr. G. Masilamani, that the order dated 2.7.1984 appointing the 3rd respondent and others to junior scale (Grade II), Pondicherry Judicial Service cannot be justified under Rule 8 of the Rules nor is it valid in terms of Rule 9 of the Rules and the challenge relating to the validity of the order dated 27.2.1992 promoting the 3rd respondent to junior scale (Grade I) of the Pondicherry Judicial Service on various grounds, Mr. R. Krishnamurthi, submits as follows: According to him, the order dated 2.7.1984 appointing the 3rd respondent and others as junior scale (Grade II) of the Pondicherry Judicial Service, could be well justified under Rule 9 of the Rules. The only alleged deficiency and requirement said to be wanting in the matter of recruitment under Rule 9 of the Rules in relation to these candidates is that an advertisement had not been made as contemplated by Rule 12 of the Rules. It is stated that the 3rd respondent and others were fully ' qualified to be appointed as junior scale (Grade II), Pondicherry Judicial Service, under Rule 9 of the Rules and that they have been duly considered by the Selection Committee and recommended by the High Court as contemplated by the Rules. Mr. R. Krishnamurthi, learned Senior Counsel appearing for the contesting respondents, drew my attention to File No. 1, that the consideration for appointment in 1983-84 has been confined to the in-service candidates and that too in respect of persons who are eligible to be appointed but could not be appointed under Rule 8 of the Rules for want of vacancies. In these circumstances, Mr. R. Krishnamurthi, submits that the requirement of advertisement might have been considered unnecessary by the High Court. According to him, the word 'shall' in Rule 12 has to be read as 'may' to enable a discretion in the High Court to meet such contingencies, and to hold otherwise would be to render an exercise to be made without any purpose in a given situation like the present one. He also refers to the decisions reported in M/s. Rubber House v. Excellsior Needle Industries Private Limited and State of Madhya Pradesh v. Azad Bharat Finance Co., , to show that the word 'shall' in Rule 12 can be read as 'may' in the context.
72. Even otherwise, according to Mr. R. Krishnamurthi, in view of Rule 32 of the Rules, which enables the Administrator to relax the Rules, and having regard to the fact that the entire exercise has been approved by the Administrator after the High Court had recommended, it can be taken that the requirement of Rule 12 of the Rules had been relaxed. Therefore, the learned Senior Counsel submits that the appointment of the 3rd respondent and others cannot be invalidated on the ground of non-compliance with the advertisement as required under Rule 12 of the Rules.
73. According to Mr. G. Masilamani, learned Senior Counsel for the petitioners, the 3rd respondent was overaged as on the date of the commencement of the Rules viz. 23.1.1980 since he was aged about 40 years in 1980. As per the unamended Rule 11 (3), the age limit was 32 years. This Rule 11(3) was amended on 3.11.1983 by inserting an explanation exempting the service candidates from age qualification. Therefore, the 3rd respondent was unqualified even for regular appointment. It is because of that the 3rd respondent's recruitment is sought to be sustained under Rule 8 (initial recruitment), which does not contain age qualification. Mr. G. Masilamani, further contends that the promotion of the 3rd respondent from junior scale (Grade II) to junior scale (Grade I) is bad in law for the following reasons:
(a) As the appointment of the 3rd respondent in the post of junior scale (Grade II) is bad, any promotion made therefrom is also equally bad and hence, is liable to be set aside.
(b) The post of junior scale (Grade I) is a promotional post from junior scale (Grade It) based on merit-cum-seniority. It is an admitted case that the 3rd respondent had not served even a single day as a Judicial Officer in the junior scale (Grade II) and hence, his promotion in reality is a direct recruitment to junior scale (Grade I) contrary to the Rules.
(c) Rule 7(2) provides that promotion from one grade to another shall be made on the recommendations of the High Court. Recommendation necessarily involves objective assessment of the merit and suitability of the candidate for the higher promotional post taking into consideration the past service in the feeder post. If a candidate for whatever reason had not served at all in the lower feeder post, there shall be nothing or no material available in the service record of the candidate to enable the recommending authority to consider and assess the merit and suitability of the candidate to the higher post to make recommendation as required under the Rules. Recommendation of the High Court for promotion from junior scale (Grade II) to Grade I, Pondicherry Judicial Service was made only by scrutinising the relevant service record of eligible candidates. Hence according to Mr. G. Masilanjani, the recommendation, if any, made by the High ' Court for promotion of the 3rd respondent without any material whatsoever in the post of junior scale (Grade II) shall ,be clearly improper, irregular and contrary to the requirement of the Rules in its latter and spirit. Therefore, he contends that the promotion of the 3rd respondent to junior scale (Grade I) cannot be sustained. According to him, the experience, if any, of the 3rd respondent in the post of O.S.D., Under Secretary and Deputy Secretary to Government, Law Department, shall not constitute as relevant materials for consideration for the promotion from the post of junior scale (Grade II) to the post of junior scale (Grade I) in the Pondicherry Judicial Service because the experience in those posts are irrelevant and immaterial for the post of junior scale (Grade I).
74. Mr. G. Masilamani, further submits that the promotion of the 3rd respondent to the post of junior scale (Grade I) cannot be sustained since he had "Nil" experience and hence, 'Nil' merit in the post of junior scale (Grade II). He then submits that promotion and fixation of inter se seniority in the promotional post should be done on the comparative merit of the candidates. The 3rd respondent having Had 'Nil' merit in the post of junior scale (Grade II), he could not have been compared with other candidates in the post of junior scale (Grade II) for promotion and fixation of seniority inter se. Therefore, according to Mr. G. Masilamani, the comparison of the 3rd respondent with other candidates for promotion is clearly improper and violative of Article 14 of the Constitution of India since unequals cannot be compared with equals and decision arrived at. According to him, the service in the Judicial Department and the service in the executive-Law Department, cannot be compared at all to arrive at the relative merits of the candidates.
75. In answering the contentions of Mr. G. Masilamani, relating to the validity of the order dated 2.7.1984 that the 3rd respondent was not a legal adviser and not qualified to be appointed under the Rules and that he was over aged for appointment in terms of. the Rules, Mr. R. Krishnamurthi, learned Senior Counsel, submits that the above contentions of Mr. G. Masilamani are incorrect and untenable. According to him, the 3rd respondent possessed the necessary qualifications for appointment as a junior scale (Grade II) officer under Rule 9 of the Rules. He was also qualified for appointment under Rule 8 of the Rules as on 17.12.1980, which was the crucial date for the purpose of appointment under Rule 8 of the Rules, as it was on the said date that the Schedule to the Rules was amended. Having regard to the fact, that the Rules could be operated on the basis of the posrenumerated in the Schedule and the further fact that the Schedule to the Rules was found to be inapt and incorrect which required amendment and it was ' amended only on 17.12.1980, the crucial date was construed only as 17.12.1980 by the High Court as well as the Government of Pondicherry.
76. In support of his contention Mr. R. Krishnamurthi, refers to File No. 1 which according to him, would go to support the above proposition. That apart, the contention relating to age qualification is also without substance as the rule relating to age had been amended in November, 1983, and the appointment under Rule 9 of the Rules was made, only on 2.7.1984. Therefore, Mr. R. Krishnamurthi, learned Senior Counsel, submits that the contention of Mr. G. Masilamani, that the 3rd respondent did not possess the qualification or was overaged is without substance. In regard to the other contention raised by Mr. G. Masilamani relating to the validity of the appointment dated 2.7.19$4 and also the order of promotion dated 27.2.1992, viz., those orders are violative of basic structure of the Constitution of India, Mr. R. Krishnamurthi submits that they are not violative of the Constitution of India. According to him, the post in junior scale (Grade II) of the Pondicherry Judicial Service is on the lower rung of the Judicial Service. The Rules contemplate the appointment of an advocate as well as a member of a service holding the necessary law qualification to be appointed to the said post. As a matter of fact, every State including Tamil Nadu have got rules which enable members from the services having law qualification to be appointed to the post of District Munsif-cum-Magistrate. According to the learned Senior Counsel Mr. R. Krishnamurthi, neither Article 50 of the Constitution nor the decisions referred to by the petitioners would invalidate either the said Rules or provisions enabling a service candidate having a law qualification to be appointed to posts like District Munsifs or Magistrates. In the circumstances, the learned Senior Counsel submits that the contention of the petitioners' learned Senior Counsel in this regard are also without any basis.
77. The other contentions raised by the petitioners in relation to the validity of the order dated 2.7.1984, are that the same cannot be justified under Rule 8 of the Rules as according to him, the said rule contemplates only one initial recruitment and not successive orders of initial recruitment. While it may be possible to contend to the contra, it is submitted that the said question need not be gone into as the impugned order dated 2.7.1984 could be justified under Rule 9 of the Rules. According to Mr. R. Krishnamurthi, the entire process of selection and appointment contemplated by Rule 9 has been followed excepting advertisement. In the circumstances, the order dated 2.7.1984 cannot be said to be illegal or irregular.
78. As regards the challenge relating to the order dated 27.2.1992 promoting the 3rd respondent and others from junior scale (Grade II) to junior scale (Grade I) of the Pondicherry Judicial Service, the following are the submissions made by the contesting respondents. The 3rd respondent; had been appointed to junior scale (Grade II) on 2.7.1984. It is not open to the petitioners to question the validity of his appointment as junior scale (Grade II) officer at this stage while seeking to challenge his promotion dated, 27.2.1992. In this context, my attention was invited to the decisions reported in Narendra Chadha v Union of India A.I.R. 1986 S.C. 638:1986 Lab. I.C. 590: (1986)2 S.C.C. 157: (1986)1 S.C.J. 307: (1986)1 Ser.L.J. 287: (1986)1 Lab.L.N. 665 and A.I.R. 1917 P.C. 142. Therefore, the learned Senior Counsel for the contesting respondents submits that the contention of the petitioners deserves to be rejected.
79. I am unable to give my seal of approval to the argument of Mr. R. Krishnamurthi, learned Senior Counsel, that the 3rd respondent was qualified for appointment under Rule 8 of the Rules as on 17.12.1980 which was the crucial date of appointment under Rule 8 of the Rules as it was on the said date that the Schedule to the Rules was amended. Rule 1(2) of the Rules says that the Rules shall come into force from the date of publication in the Official Gazette, i.e., from 23,1.1980. The abovesaid rule has categorically fixed the date of coming into force of the Pondicherry judicial Service Rules, 1980, as the date of publication in the Official Gazette. The Rules do not anywhere state that the commencement of the same would get postponed each time an amendment to the Rules is made and it is that date of publication of the amended rule which would be reckoned as the date on which the Rules came into force and not the date of publication of the original amended Rules. Hence, the amendment to the Schedule published oh 17.12.1980 cannot said to have postponed the date of commencement of the Rules to that date as that goes contrary to the above Rules. The postponement of the date of commencement of the Rules could be made only by a specific amendment made in accordance with Article 234 of the Constitution of India and not by interpretation of the Rules to suit the convenience, that too, contrary to a specific rule which fixes the date for coming into force of the Rules.
80. I have also perused File No. 1 (File No. 42-8/80-' LLD) produced by the Government of Pondicherry. It is mentioned therein that the Pondicherry Judicial Service Rules, 1980, as approved by the Government of India have been notified in the Extraordinary Gazette of Pondicherry dated 23.1.1980 and as per these rules, the High Court has to recommend to the Administrator of Pondicherry suitable persons from amongst the Judicial Officers and Legal Advisers to Government in service in the Union Territory Of Pondicherry, for initial recruitment to the service. The letter dated 28.7.1980 in D.O. No. 42-8-80-LLD sent by Thiru A. Chandrasekhara Menon, Secretary to Government, Law and Labour Department, Government of Pondicherry to Dr. David Annoussamy, Chief Judge, Pondicherry (as he then was) can also be usefully referred to in this context for two purposes viz., (1) to notice that the Pondicherry Judicial Service Rules, 1980, came into force with effect from 23.1.1980 and (2) that the initial constitution of the service should be made in pursuance of Rule, 8 of the Rules. It runs thus:
Dear Dr. David Annoussamy, As you are aware the Pondicherry Judicial Service Rules, 1980, have come into force with effect from 23rd January, 1980. The initial constitution of the service should be made in pursuance of Rules of the Rules and necessary particulars for the purpose have to be furnished to the High Court for making their recommendations, for the initial recruitment. I am to point out that the initial recruitment to the service should be made inter alia from among the Judicial Officers in service in the Union Territory of Pondicherry at the time of commencement of the above Rules. I am, therefore, to request that the particulars of posts and all eligible Judicial Officers may kindly be furnished in triplicate in the pro-forma enclosed.
The service cards of the officers and their uptodate character rolls may also be sent as early as possible. With regards.
Yours Sincerely, (Sd.) A. Chandrasekhara Menon.
81. As contended by Mr. R. Krishnamurthi, learned Senior Counsel for the contesting respondents, if the date of commencement of the Rules is postponed to the date of amendment of the Rules, it shall cause uncertainty and absurd results. Further, acts done prior to the amendment of the Rules would become irregular and even illegal if the date of commencement of the Rules is reckoned from the date of the amendment. By no stretch of imagination an interpretation can be made rendering the date of commencement of the Rules as an uncertain and fluctuating one. Further, the date of commencement of a rule should be a definite one because the date of commencement shall be the date on which the qualification and eligibility shall be determined. The Rules under consideration are one made under Article 309 read with Article 234 of the Constitution of India and the same cannot be changed by the Government of Pondicherry and the High Court in their administrative jurisdiction. Therefore, the date of commencement of the Rules shall only be 23.1.1980 and not any other later date. I am, therefore, of the view, that the 3rd respondent was not qualified for recruitment under Rule 8 of the Rules and I reject the submissions made by Mr. R. Krishnamurthi, learned Senior Counsel for the contesting respondents in this regard and accept the arguments of Mr. G. Masilamani, learned Senior Counsel appearing for the petitioners.
82. It is relevant at this stage to refer to the bio-data and service particulars of the 3rd respondent Edward Kumar, which are available in the records produced by the Government of Pondicherry, as follows:
8.9.1939 - Date of Birth 2.5.1962 - Worked as Assistant (Secretariat) - to Non-gazetted in the Government of 21.3.1967 Pondicherry 23.3.1967 - Worked as Junior Superintendent to (Secretariat) 22.5.1968 non-gazetted.
31.5.1968 - Worked as Assistant
to (Secretariat)
26.8.1970 non-gazetted.
27.8.1970 - Worked as
to Sub Registrar.
19.3.1978
1975 - Passed the Law Degree
20.3.1978 - Appointed as Superintendent
to
6.3.1980 (Non-gazetted) in Law and Labour
Department and was holding that post till
6.3.1980.
The post of Superintendent was a non-gazetted
Group 'C' post as per Recruitment Rules pub-
lished in G.O.Ms. No. 1-98/68-LLD, dated 1.8.1968.
It was upgraded as Group 'B' Gazetted post only
under Recruitment Rules dated 18.9.1990. The
qualification prescribed for appointment to the
post of Superintendent, Law Department, was a
minimum of three years experience in the Law
Department. The 3rd respondent never worked
in the Law Department prior to his appointment
as Superintendent and hence not qualified and
had no experience at all much less three years
experience as on the date of his appointment to
the post of Superintendent, Law Department on
20.3.1978. The appointment of the 3rd respon-
dent as Superintendent, Law Department, was
purely on ad hoc basis and he was regularised in
the post only on 1.2.1981 and was placed on
probation for two years.
1.2.1981 Date of regularisation and placing on probation.
7.3.1980 Appointed as Officer on Special Duty (Codifica-
tion) (Ad hoc), even before he was regularised in
the feeder post of Superintendent, Law Depart-
ment.
The qualification for the appointment of O.S.D.
was a minimum of three years experience as
Superintendent, Law Department. The 3rd
respondent was not qualified as he had only two
years experience as Superintendent. Hence, even
while making the appointment as O.S.D. it was
mentioned in the file as 'not qualified'. The post
of O.S.D. was assigned to the 3rd respondent
with the duty of Codification of Statutes (Not
giving legal advice).
In reply to a question raised by the High Court
Registrar as to who were the "Legal Advisers"
the Government of Pondicherry replied on
4.3.1982 stating that the following Gazetted
Officers are competent to give legal advice.
1. Law Secretary Rs. 1,500-,2000
2. Deputy Secretary Rs. 1,100-1,600
3. Under secretary Rs. 840-1,200
4. Officer on Special Duty Rs. 650-1,200
The post of Superintendent, Law Department
was not one among the Legal Advisers.
3rd respondent was appointed as Legal Adviser
only after the publication of the Rules.
16.6.1984 Government of Pondicherry issued a memo to
the 3rd respondent calling for
option to join the Pondicherry Judicial Service.
The same was received by the 3rd respondent
only on 17.6.1984.
16.6.1984 Letter of option seat by the 3rd respondent to
join the Pondicherry Judicial Service.
7.1.1984 Minutes of the Selection Committee held at
Rajnivas in which the 3rd respondent was
selected.
8.5.1984 High Court, Madras, communication approving
the selection and recommending the appoint-
ment of the 3rd respondent to Pondicherry
Judicial Service. The same was made on 8.5.1984 even
before the 3rd respondent gave his consent,
which was on 16.6.1984 to join the Pondicherry
Judicial Service.
1985 Deputed for training in Legislative Drafting in
Government of India.
27.7.1988 Promoted and appointed as Under Secretary to
Government, Law Department.
18.11.1991 Promoted and appointed as Deputy Secretary to
Government, Law Department.
27.2.1992 Promoted and appointed as Junior Scale Grade
I, Pondicherry Judicial Service as Special Offi-
cer-cum-Additional Subordinate Judge.
28.2.1992 3rd respondent assumed charge.
11.3.1992 Writ petition filed questioning the appointment
of the 3rd respondent to the Pondicherry
Judicial Service.
83. A bare look into the bio-data of the 3rd respondent shows that all the offices listed in the bio-data and the service particulars are neither judicial nor part of any judicial service, but are appointments under the control of the executive. It is also not disputed that the 3rd respondent never acted in any judicial office prior to his appointment as Special Officer-cum-Additional Subordinate Judge. I, therefore, agree with Mr. G. Masilamani, learned Senior Counsel for the petitioners, that the 3rd respondent is not qualified for appointment as junior scale (Grade II), Pondicherry Judicial Service and later promoted to junior scale (Grade I) of the Pondicherry Judicial Service. Needless to state that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution of India. The above objectives enshrined under the Constitution cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility.
84. Regarding the submission of Mr. R. Krishnamurthi, that the appointment of the 3rd respondent could be sustained under Rule 9 of the Rules, I am of the view that the said contention also cannot be countenanced for the following reasons. The 3rd respondent's name was taken up for consideration to the post of junior scale (Grade II), Pondicherry Judicial Service, as early as 2.9.1982, as could be seen from pages 10 and 11 of File No. 1. Rule 11 of the Rules as it originally steed and after its amendment runs as follows:
___________________________________________________________________________ Unamended Rule 11 Amended Rule 11 as per Extraordinary Gazette No. 27, dated 27.11.1983 ___________________________________________________________________________
11. The qualifications 11(1) The qualification for for direct recruits to direct recruits to the junior scale the junior scale shall in the service shall be as follows, be as follows namely:
1. must be a citizen (a) must be a citizen of India;
of India
2. a person practising (b) must have practised as an Advocate or as an Advocate in India must have held any post under the Central or a person qualified or State Governments or Union Territory to be admitted as an Administrations requiring knowledge of Advocate under the law, for a period of not less than Advocates' Act, 1961. years; and
3. not more than 32 (c) must be not more than 32 years of age years of age on the on the 1st January of the year in which 1st day of January of his appointment is made.
the year in which his appointment was made The qualifications for 2. The qualification for direct recruits direct recruits in the to the senior scale in the service shall senior scale shall be be as under:
as follows: (a) must be a citizen of India;
(a) must be a citizen (b) must have practised as an advocate or
of India; must have held any post under Central or
(b) must have practi- State Governments or Union Territory
sed as an advocate Administrations requiring special
for not less than knowledge of law for a period of not less
seven years; and than ten years; and
(c) must have attained (c) must have attained the age of 35
the age of 35 and not years and not attained the age of 45
attained the age of 45 years on the 1st of January of the year
on the 1st day of Janu- in which his appointment is made.
ary of the year in which Explanation; In the case of persons
his appointment is made. recruited from service, the
qualification as to age shall not apply.
85. The qualification prescribed under Rule 11(2) of the Rules as it stood till the amendment of the said Rules on 27.11.1983, was that a person should be practising as an Advocate in India or a person qualified to be admitted as an Advocate under the Advocates' Act, 1961. The 3rd respondent was employed in the Government of Pondicherry. Hence, he was neither a practising advocate nor was he eligible to be admitied as an advocate as per Rule 49, Part VI, Chapter II, Section 7 of the Bar Council of India Rules. Under the said Rule,, a full time employee cannot enroll himself as an advocate. However, the name, of the 3rd respondent was approved for appointment by the Selection Committee and his appointment was also notified in the Gazette Pondicherry. It is understand able as to how the Law Department, Government of Pondicherry, initialed the name of the 3rd respondent for appointment to the post of junior scale (Grade II) as early as September, 1982 when he was not qualified at all under Rule 11 (2) of the Rules as then existed. Similarly, as in September, 1982, he was aged 42 years, which is a disqualification as per Rule 11(3) of the unamended Rules which fixes the age limit as 32 years. The service candidates were exempted from age qualification only by insertion of an Explanation clause by amendment to Rule 11 published in the Gazette on 27.11.1983.
86. As per the 1983 amendment of Rule 11 of the Rules, advocates and persons in service under Central, State or Union Territory Administrations stand or equal fooling. Hence, for regular appointment under Rule 9 read with Rules 11 and 12 of the Rules, a person in Government service cannot be hand picked and considered without resorting to Rule 12. Any such selection shall be wholly violative of not only Rule 12 of the Rules, but also Articles 14 and 16 of the Constitution of India. Equality of opportunity for public employment and guarantee against discrimination are constitutional rights which cannot be violated by the Government, much less by the High Court, be it in its administrative or judicial jurisdiction. Hence, the submission made by Mr. R. Krishna murthi, learned Senior Counsel on behalf of respondents l,2 and 4 that the appointment of the 3rd respondent to the Pondicherry Judicial Service without following the requirements of Rule 12 of the Rules was not bad in law, cannot be countenanced.
87. At this stage, it has to be borne in mind that the direct recruitment of Legal Advisers to Government at the time of initial constitution, without calling for applications and without conducting any test under Rule 8 of the Rules, cannot be imported into Rule 9 read with Rules 11 and 12 of direct recruitment. Rule 8 of the Rules is a transitional one time recruitment provision whereas Rule 9 read with Rules 11 and 12 are regular and permanent provisions. The appointment of the 3rd respondent cannot, therefore, be sustained by reading the word 'shall' in Rule 12 as 'may' since, if done so, the said rule shall become unconstitutional as one being violative of Articles 14 and 16 of the Constitution of India.
88. The contention of Mr. R. Krishnamurthi, learned Senior Counsel, in regard to the relaxation of Rule 12 of the Rules also cannot be sustained, since the appointment of the 3rd respondent under Rule 9 cannot be sustained by implied relaxation of the Rules. It is a well accepted proposition of law that the provision for relaxation of the Rules shall be resorted to sparingly only to avert and to thwart hardship and injustice to individuals by the enforcement of the Rules. Even then, such relaxation shall be made by the Administrator after consultation with the High Court and for the reasons recorded in writing therefor. In the case of the 3rd respondent, none of the aforesaid requirements was satisfied for the relaxation of the Rules. No in justice or hardship was sought to be averted in the case of the 3rd respondent by appointing him directly to the Pondicherry Judicial Service without recourse to the requirement of Rule 12. Similarly, the Lieutenant Governor neither had consulted the High Court nor had he passed any order relaxing the rules much less recording the reasons therefor. File No. 1, paragraph 10 (page No. 3) contains only the notes prepared by the Law Secretary. There is nothing to suggest that proceedings were taken by the Lieutenant Governor for relaxing the rules in consultation with the High Court. The mandatory requirements of the Rules have to be strictly complied with by the Lieutenant Governor failing which such acts shall be arbitrary and discriminatory and consequently ultra vires Articles 14 and 16 of the Constitution of India.
89. With regard to the argument of Mr. R. Krishnamurthi, learned Senior Counsel, for the contesting respondents that Rule 31 has no application to the 3rd respondent, I am of the view that Rule 31 is a transitional provision. Till such time persons are appointed to cadre posts as per the provisions of the recruitment rules, the said posts were allowed to be held by persons who were appointed to the cadre posts either before or after the commencement of the Rules. This rule had been enacted taking into consideration the delay involved in the regular selection and posting of Judicial Officers as per the procedure provided under the Rules and also the necessity to man the said posts till then as it would be inadvisable to keep the judicial posts vacant. Rule 31 shall have no application in the case of the 3rd respondent since he was never holding any cadre post in the Pondicherry Judicial Service.
90. In regard to the argument of Mr. R. Krishnamurthi, in respect of Rule 30,I am of the view that the said rule also will have no application to this Case since at no point of time the Administrator (Lieutenant Governor) entertained any doubt as regards the interpretation of these rules and hence, there was no occasion for him to decide any question as to the interpretation of the rules in consultation with the High Court. The files of the Government of Pondicherry and the High Court, Madras, do not contain any material to suggest the invoking of Rule 30 at any point of time. When the rule is clear, there can be no decision as to its meaning.
91. At the time of argument Mr. G. Masilamani, learned Senior Counsel for the petitioners while questioning the validity of the impugned orders submitted that the 3rd respondent has not served in any judicial post, viz. junior scale (Grade II) of the Pondicherry Judicial Service even for a single day and therefore, there was no occasion to consider his case on merit in an objective manner in respect of the lower feeder category. In answering this Mr. R. Krishnamurthi, learned Senior Counsel appearing on behalf of the contesting respondents, submits that the above contention is misconceived and overlooks the scope of the Rules. As per Rule 5(1), the appointment to the Pondicherry Judicial Service is to be made to the corresponding scale and grade and not against any specified post. Rule 7(2) deals with promotion from one scale to another and from one grade to another. Rule 2(d) of the Rules defines a 'member of the service' to mean, a person appointed in a substantive capacity to either scale of the service. The 3rd respondent was appointed as a junior scale (Grade II) officer without prejudice to his continuing officiation as Officer on Special Duty on 2.7.1984. Therefore, according to Mr. R. Krishnamurlhi, the 3rd respondent cannot be said to be a person not belonging to junior scale (Grade II) of the Pondicherry Judicial Service so as to disentitle him for promotion. Further, he submitted that his service has been assessed by the High Court as well as by the Government of Pondicherry and his promotion was based on the recommendations made by the High Court as required under the Rules. In this view, Mr. R. Krishnamurthi submits that the contention of the petitioners in this regard deserves to be rejected.
92. At the time of hearing, I also raised a query as to whether the Government of Pondicherry has any record to show that the 3rd respondent has assumed charge as junior scale (Grade II) officer in the Pondicherry Judicial Service, to which Mr. R. Krishnamurthi, learned Senior Counsel appearing for the Government of Pondicherry fairly concedes that the Government has no record to show that he has assumed office as junior scale (Grade II) officer in the Pondicherry Judicial Service.
93. To my further query that when the 3rd respondent had not assumed office in any one of the posts in junior scale (Grade II) of the Pondicherry Judicial Service pursuant to the order of appointment dated 2.7.1984, how he could be said to have been effectively appointed to the Pondicherry Judicial Service so as to enable him to be promoted to junior scale (Grade I) post in the Pondicherry Judicial Service, Mr. R. Krishnamurthi, learned Senior Counsel submits as follows:
The Pondicherry Judicial Service contemplates appointment to the service in the respective scale or grade and not to any post in the said service. The 3rd respondent, like others, had been appointed to the service to the corresponding scale and grade. That would take effect notwithstanding that ' there is no appointment or officiation in a particular post borne on the Pondicherry Judicial Service. Therefore, he submits, that it cannot be said that the 3rd respondent was not a member of the service as junior scale (Grade II) officer. Secondly, he contends that it is permissible for a person to be appointed to a particular scale or grade in a particular service, notwithstanding the fact that he is holding another post and continues to hold the said post without prejudice to his appointment. Thus, according to him, for all the foregoing reasons, the appoint ment of the 3rd respondent as junior scale (Grade It) officer in the Pondicherry Judicial Service and his promotion as Grade I officer in the junior scale of the Pondicherry Judicial Service cannot be said to be invalid or irregular and the writ petitions deserve to be dismissed.
94. I am unable to accept the said contention of Mr. R. Krishnamurthi. The 3rd respondent after his appointment to the Pondicherry Judicial Service did not join the service and he failed to submit himself to the control of the High Court under Article 235 of the Constitution of India. As a matter of fact, the 3rd respondent continued in the Law Department and even enjoyed several promotions in that Department, The recitals in the appointment order of the 3rd respondent allowing him to continue in the Law Department were added by the Government of Pondicherry. The High Court records do not disclose any order by . the High Court deputing the 3rd respondent to Law Department. It would be relevant to mention here that Rule 24 says that a person appointed to the judicial post shall take oath of allegiance to India and to the Constitution of India. As stated earlier, and as fairly conceded by Mr. R. Krishnamurthi, learned Senior Counsel for the contesting respondents, the 3rd respondent had not joined the Judicial Service and has not taken the oath of allegiance. Hence, I am of the view that a person who had not joined the service cannot claim seniority, promotion and other benefits including implied relaxation in the said service. It means, the 3rd respondent after finishing his work in the Law Department may join Pondicherry Judicial Service at a later date, but he never joined the Pondicherry Judicial Service.
95. The 3rd respondent's promotion to junior scale (Grade I) of the Pondicherry Judicial Service, was also bad in my view since he was not placed on probation as required by Rule 14(2) of the Rules in the post of junior scale (Grade II) when all the others who were appointed along with him were placed on probation. Therefore, the 3rd respondent cannot be given a special, distinct and different treatment from others who came to be appointed along with him. Any such special treatment shall amount to unjust discrimination and violative of Article 14 of the Constitution besides being bad for bias in favour of the 3rd respondent at the time of his appointment and also at the time of promotion. In view of the fact that the 3rd respondent is yet to be confirmed in the feeder category of junior scale (Grade II), he cannot be promoted on regular basis and appointed permanently in the higher post of junior scale (Grade I) of the Pondicherry Judicial Service. For this reason also, the promotion of the 3rd respondent to junior scale (Grade I) of the Pondicherry Judicial Service cannot be sustained.
96. Rule 26 provides for imparting training to the appointees of junior scale (Grade II), Pondicherry Judicial Service. Since the 3rd respondent had not joined the post of junior scale (Grade II), he had not under gone training as required by the Rules. Hence, he was not eligible to sit and dispose of cases as a Judicial Officer in junior scale. Further, he is not entitled to be confirmed in the post of junior scale (Grade II), since he had not undergone the training as required under the Rules. Therefore, he cannot be promoted to the junior scale (Grade I) as he is not qualified even to be regularised in the post of junior scale (Grade II) for want of training.
97. Mr. R. Krishnamurthi, submits that the 3rd respondent has been dealt with in a special manner, as alleged by the learned Senior Counsel for the petitioners, is incorrect. According to him, all the five persons who were appointed on 2.7.1984 were not placed on probation. As referred to already, since these persons were a class by themselves, viz. they were eligible to be appointed under Rule 8 but could not be appointed for want of Vacancies, they were considered and appointed under Rule 9 of the. Rules in a substantive capacity. Therefore, Mr. R. Krishnamurthi submits, that the question of violation of Article 14 of the Constitution does not arise. Further, Rule 14(2) of the Rules requires candidates on appointment to the service shall be oh probation for a period of two years. The maximum period of probation is two years in the service. Since no orders terminating or extending the probation had been made by the Government and the period had also expired long ago, they would be deemed to be approved probationers in the junior scale (Grade II) posts. Therefore, according to Mr. R. Krishnamurthi, the question of disabling the 3rd respondent or the other four officers from being promoted on this ground would not arise.
98. I am unable to accept the above contention of Mr. R. Krishnarriurthi. The 3rd respondent's appointment order discloses that he was appointed under Rule 7(1) read with Rule 14 of the Rules which necessarily means that he was appointed under Rule 9 because it is only regular appointees under Rule 9 who are liable to undergo probation under Rule 14. Having accepted art appointment order with a liability to undergo probation, the 3rd respondent cannot be allowed to contend that he need not undergo probation. Equally, respondents 1, 2 and 4 having issued an appointment order to the 3rd respondent with a liability to undergo probation cannot be allowed to contend suo motu that the 3rd respondent need not undergo probation. Hence, I am of the view that the contesting respondents are estopped from contending otherwise.
99. That apart, if the 3rd respondent had got himself relieved from the Law Department and joined the Pondicherry Judicial Service, he would have been placed on probation. He cannot take advantage of his failure to join the Pondicherry Judicial Service, as one exempting him from one of the conditions of appointment which is also a mandatory requirement under the Rules. It is apparent on the face of the records of the High Court and the Government, that the 3rd respondent never made any efforts to gel himself relieved from the Law Department to join the Pondicherry Judicial Service. Since the 3rd respondent had not joined the Pondicherry Judicial Service, his probation cannot be denied to have commenced and completed. Perhaps, if he had joined the Pondicherry Judicial Service and continued in the service, such a presumption may be available on the ground that his services were not terminated even after three years from the date of joining Pondicherry Judicial Service.
100. Much arguments were advanced on behalf of the contesting respondents stating that the 3rd respondent was an 'in-service candidate'. For the purpose of Rule 9, the term 'in-service' would only mean, a person is in the employment of the State, Central or Union Territory Government requiring knowledge of law for a period of not less than three years. In Rule 11, such a person is put on par with a practising advocate having an experience of three years at the Bar. Hence, for recruitment under Rule 9, the qualification prescribed under Rule 11 does not make any distinction between candidates, namely, a person in the service and a practising advocate. Therefore, a person in Government service cannot be treated differently and considered separately and directly for recruitment under Rule 9 leaving qualified advocates and also other persons in the service of Government (which may include posts outside the Law Department also). Only if applications are called for, the number of eligible candidates in either category will be known.
101. The argument of Mr. R. Krishnamurthi that the 3rd respondent being an in-service candidate, may be considered separately for recruitment without complying with the procedure provided under Rule 12 cannot be sustained. If so done, it shall be a clear case of abuse and colourable exercise of powers, besides being arbitrary and discriminatory and consequently violative of Articles 14 and 16 of the Constitution of India. Hence, the argument of the learned Senior Counsel appearing on behalf of the contesting respondents in support of the recruitment of the 3rd respondent under Rule 9 of the Rules is not at all tenable. Perhaps, the other four Judicial Officers, who wore inside the Judicial Service itself, may stand on a different footing whereas the 3rd respondent, who was in the service of the Law Department outside the Judicial Service, neither can be compared with the other four Judicial Officers nor can be equated along with them for justifying the appointment. 1 shall deal with this point in extenso when I consider W.P. No. 14035 of 1992.
102. Next, it was argued by Mr. R. Krishnamurthi, ' that the writ petitions are belated and hence they should be dismissed on the ground of laches. Even though the 3rd respondent was selected to the post of junior scale (Grade II), Pondicherry Judicial Service, and his appointment was notified in the Gazette on 2.7.1984, he had not joined the service as a Judicial Officer for more than seven years and eight months and had not discharged judicial function in any Court until he was promoted to the post of junior scale (Grade I), Pondicherry Judicial Service on 28.2.1992. Hence, the writ petition filed on 11.3.1992 immediately on his assumption of Charge in the promoted post in the Pondicherry Judicial Service is not belated. The writ petition in my view, can be filed immediately after the assumption of office by the 3rd respondent. Since the 3rd respondent had not joined the service and assumed the judicial post till 28.2.1992, the writ petition was not filed challenging his appointment and the same was filed as soon as he assumed charge of the office. Hence, it is not hit by laches, as could be seen from the decision of the Himachal Pradesh High Court reported in Parmatma Ram v. Siri Chand , where it has been held as follows:
Thus, unless a person occupies an office an inquiry into the validity of the authority for the occupation of that office cannot be made and the present petition so far as it relates to the issue of a writ in the nature, of quo warranto cannot be said to have been filed after inordinate delay.
103. Each day the 3rd respondent is in office it rise to fresh cause of action and as such, the writ petition is not hit by laches, as could be seen from the following three decisions. The first decision is reported in Baij Nath Singh v. The State of Uttar, Pradesh , wherein it has been held as follows:
This petition cannot be dismissed on the ground of delay also. In Sonu Sampat Shewale v. Jal-gaon Borough Municipality, I.L.R. 1958 Bom. 113,a Bench of the Bombay High Court held as follows:
If the appointment of an officer is illegal, every day that he acts in that office a fresh cause of action arises; there can, therefore, be no question of delay in presenting a petition for a writ of quo warranto in which his very right to act in such a responsible post has been questioned.
A similar relief is capable of being granted in the present case also and, therefore, the petition cannot be dismissed on the ground of delay.
104. The second decision is reported in Dr. Het Ram Kalia v. Himachal Pradesh University, Simla A.I.R. 1977 NOC. 246 (H.P.), wherein it has been observed as follows:
A writ of quo warranto is never issued as a matter of course and it is always within the discretion of the Court to decide, after having considered the facts and circumstances of each case, whether the petitioner concerned is the person who could be entrusted with such a writ which is always issued only in the interest of the public in general. The Court may refuse to grant a writ of quo warranto if it is vexatious or where the petitioner is guilty of laches, or where he has acquiesced or concurred in the very act against which he complains or where the motive of the relator is suspicious.
105. The third decision on this aspect is reported in Rashik Ch.Deb Barma v. The Government of Tripura A.I.R. 1976 Gait. 87, wherein it has been held by a Bench of the Gauhati High Court as follows:
So far as delay is concerned, it is true that ordinarily this Court will not countenance any inordinate delay in filing such writ petition. But as has been held in the decisions reported in Baij Nath v. State of Uttar Pradesh and in S.B. Roy v. P.N. Banerjee (1968)72 C.W.N. 50, delay in presenting a petition for a writ of quo warranto, in which the right of a person to function in a certain capacity is challenged, cannot be a ground for rejecting it. In such a case it was held, every day the person so acts in that capacity a fresh cause of action arises. We are in respectful agreement with this view. In the instant case, if the petitioner succeeds in establishing before us that the respondent No. 2 has no jurisdiction to hold the post of Administrator, the delay in presenting the petition will not defeat his cause. We accordingly proceed to examine the points which were urged before us by the learned Counsel for the petitioner Mr. M. Majumder.
106. The delay in my view, is not an inviolable rule. The relief granted shall depend on the circumstances of each case and the exigency of Rule of Law and primacy of Justice. In support of this submission, Mr. G. Masilamani, learned Senior Counsel for the petitioners relied on the following three decisions. The first is reported in Rama Chandra Shankar Deodhar v. The State of Maharashtra . The second decision is reported in Dr. Jagannath Mishra v. State of Bihar and the third is reported in State of Madhya Pradesh v: Nandlal Jaiswal . Thus, I am of the view that no usurper can sustain his position on the ground of long usurpation, that too, when public interest is affected. Public interest shall override individual inconvenience or injury. Standard of vigilance demanded from a party seeking remedy to his personal benefit as against another individual, cannot be bodily imported in cases instituted in general and public interest. As regards cases in which illegal acts affecting public interest is exposed, the principle to be applied shall be "better late than never" since Rule of Law and majesty of justice shall prevail above all men and matters.
107. The 3rd respondent entered the Government executive service on 2.5.1962 and has been discharging his duties in the executive wing of the State for thirty years till he actually assumed judicial post as junior scale (Grade I) of the Pondicherry Judicial Service on 28.2.1992. Article 50 of the Constitution of India requires the separation of judiciary from the executive for valid and historical reasons. In this connection, the decision of the Supreme Court reported in The State of West Bengal v. Nripendra Nath Bagchi , has been cited by the learned Senior Counsel for the petitioners. In such circumstances, the 3rd respondent, who is essentially an executive officer, cannot be promoted to discharge judicial functions violating the basic structure of the Constitution of India, viz., the Rule of Law and the independence of judiciary. I may usefully refer to the following two decisions.
108. The first decision reported in S.P. Gupta v. President of India , which is the famous Judges' transfer case. In that decision it has been held as follows:
Having disposed of the preliminary objection in regard to locus standi of the petitioners, we may now proceed to consider the questions which arise for determination in these writ petitions. The questions are of great constitutional significance affecting the principle of independence of judiciary which is a basic feature of the Constitution and we would therefore prefer to begin the discussion by making a few prefactory remarks highlighting what the true function of the judiciary should be in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is not an abstract conception, but it is a living faith which must derive its inspiration from the constitutional character and its nourishment and sustenance from the constitutional values. It is necessary for every Judge to remember constantly and continually that our Constitution is not a non-aligned rational charter. It is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The judiciary has therefore a socio-economic destination and a creative function. It has to use the words of Glanville Austin, to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man; It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice. The British concept of justicing, which to quote Justice Krishna Iyer, is still "hugged by the heirs of our colonial legal culture and shared by many on the Bench" is that "the business of a Judge is to hold his tongue until the last possible moment and to try to be as wise as he is paid to look" and in the same strain are the words quoted by Professor Gordon Reid from a memorandum to the Victorian Government by Irvin, C.J., in 1923 where the judicial function was idealised in the following words;
The duty of His Majesty's Judges is to hear and determine issues of fact and of law arising between the king and the subject or between a subject and a subject presented in a form enabling judgment to be passed upon them, and when passed, to be enforced by a process of law, There begins and ends of the function of the judiciary.
Now this approach to the judicial function may be all right for a stable and static society, but not for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice and equal justice between chronic unequals. Where the content is between those who are socially or economically unequal, the judicial process may prove disastrous from the point of view of social justice, if the Judge adopts a merely passive or negative role and does not adopt a positive and. creative approach. The judiciary cannot remain a mere bystander or spectator but it must become an active participant in the judicial process ready to use law in the service of social justice, through a pro-active goal oriented approach. But this cannot be achieved unless we have judicial cadres who share the fighting faith of the Constitution and who are imbued with the constitutional values. The necessity of a judiciary which is in tune with the social philosophy of the Constitution has nowhere been better . emphasized than in the words of Justice Krishna Iyer which we quote:
Appointment of Judges is a serious process where judicial expertise, legal learning, life's experience and high integrity are components, but above all are two indispensables-social philosophy in active unison with the socialistic Articles of the Constitution and second, but equally important, built-in resistance to pushes and pressures by class interests, private prejudices, government threats and blandishments, party loyalties and contrary economic and political ideologies projecting into pronouncements.
Justice Krishna Iyer goes on to say in his inimitable style:
Justice Cardozo approvingly quoted President Theodore Roosevelt's stress on the social philosophy of the Judges which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in time with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing.
What is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives. This has to be the broad blue-print of the appointment project for the higher echelons of judicial service. It is only if appointments of Judge are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed only to the Constitution and to the people of India. The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse of abuse of power by the Slate or its officers. The judiciary stands between the citizen and the Stale as a bulwark against executive excesses and misuse or abuse of powers by the executive and therefore it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provision's in the Constitution to which detailed reference has been made in the judgments in Union of India v. Sankalchand Himatlal Sheth . But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely fearlessness of other power centres, economic or political and freedom from prejudices acquired and nourished by the class to which the Judges belong. If we may again quote the eloquent words of Justice Krishna Iyer:
Independency of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government's pleasure.
The tycoon, the communalist, the parochialist, the faddist; the extremist and radical reactionary lying coiled up and sub-consciously shaping judicial mentations are menaces to judicial independence when they are at variance with Parts III and IV of the Paramount Parchment'. Judges should be of stern stuff and tough fibre. Unbending before power, economic or political, and they must uphold the core principle of the rule of law which says "Be you ever so high, the law is above you. This is the principle of indpendence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution. Can mandamus issue for fixation of strength of Judges in a High Court; Article 216.
109. The second decision relates to the Appointment of K.N. Srivastava as High Court Judge reported in Kumar Padma Prasad v. Union of India , wherein the Supreme Court has observed as follow in paragraph 22 of the judgment:
We are of the view that holder of 'judicial office' under Article 217(2)(a) means the person who exercises only judicial functions, deter- mines causes interpartes and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of judiciary.
110. The preamble to the Constitution provides even at the outset, Justice, Social, Economic and Political as its first objective. Justice can be ensured only through untrammelled judiciary, not only of higher judiciary, but also of lower judiciary, as has been held in the decision reported in The State of West Bengal v. Nripendra Nath Bagchi . If the 3rd respondent's promotion from junior scale (Grade II) to junior scale (Grade I) without a day's experience in the lower post could be sustained, similar promotion from junior scale (Grade I) to senior scale (Grade II) and then to senior scale (Grade I) can also be sustained. In such an event, a person could be given paper appointment to a lowest post in the Judicial Service, viz. junior scale (Grade II) and allowed to work indefinitely outside the Pondicherry Judicial Service in the executive wing of the Government and one fine morning he could be promoted and appointed as the seniormost District Judge without any experience as Muhsif and as Subordinate Judge. If the same analogy is extended, the said person even without working as a District Judge, on paper may claim for consideration for appointment to the High Court. If such a thing is allowed to happen, it will be a travesty of independence of judiciary and dispensation of justice and separation of judiciary from executive.
111. I am of the view that the quality of justice shall depend upon the quality of men who preside over the judiciary and hand down the judgments. Inducting into judiciary, more particularly, subordinate higher judiciary, men from executive who have no proper training and experience in judiciary, shall amount to denial of justice, which is a basic structure of the Constitution, as has been held by the Supreme Court in the famous Judges' transfer case reported in S.P. Gupta v. President of India . In my opinion, every litigant is entitled to have his case judged by a qualified, trained and experienced judge and not by any other men. Denial of the same shall be violative of a citizen's constitutional right to have real and proper justice.
112. Though the maintainability of the writ petitions and the locus standi of the petitioners to maintain the same were raised in the counter affidavit, no serious argument was advanced on that issue. The present writ petitions filed on behalf of the Pondicherry Bar Association are maintainable as the members of the Bar are aggrieved parties and have personal interest in the independence of judiciary, rule of law and dispensation of justice, as has been laid down in the above cited Judges' transfer case by the Supreme Court. Writ of certiorari shall also lie in this case since the petitioners individually and the Pondicherry Bar Association are aggrieved persons as their interest and rights are affected inasmuch as the 3rd respondent's appointment both to junior scale (Grade II) and junior scale (Grade I) of the Pondicherry Judicial Service were made even though he was not eligible and was not recruited in accordance with Rules. Writ of quo warranto shall also issue in this case since the 3rd respondent's appointment to the post of junior scale (Grade II), Pondicherry Judicial Service, and his subsequent promotion to junior scale (Grade I) were made in contravention of the Recruitment Rules as he was not eligible to those posts and the methods adopted to recruit and promote him were contrary to the Rules.
113. For the foregoing reasons, 1 hold that the approval of the name of the 3rd respondent Edward Kumar by the Selection Committee consisting of the then Chief Justice Hon'ble Thiru K.B.N. Singh, Mr. R. Badrinath, I.A.S., Chief Secretary, Government of Pondicherry, Mr. A. Chandrasekara Menon, Secretary to Government, Law Department, Government of Pondicherry and Dr. David Annoussami, Chief Judge and Head of Judicial Department, Pondicherry (as he then was) is irregular for the reasons stated in this order. With great respect, I have to hold that the approval of the name of the 3rd respondent Mr. Edward Kumar by the Selection Committee is irregular and not in accordance with the Pondicherry Judicial Service Rules and also against the provisions of the Constitution of India. Hence, the appointment of the 3rd respondent Edward Kumar to junior scale (Grade If) and his promotion to junior scale (Grade I) of the Pondicherry Judicial Service are liable to be set aside. Accordingly, W.P. No. 3642 of 1992 is ordered is prayed for. The impugned orders relating to the appointment of the 3rd respondent Edward Kumar alone in Order No. 59/SPA/92-LD, dated 27.2.1992 and in G.O.Ms. No. 31/84-LLD, dated 2.7.1984 on the file of the 4th respondent/The Secretary, Law Department, Government of Pondicherry, are quashed. However, there will be no order as to costs.
114. For the foregoing reasons, the 3rd respondent Edward Kumar has no authority to claim his appointment to the public office, viz. junior scale (Grade II) and junior scale (Grade I) in the Pondicherry Judicial Service and perform the duties connected thereto and enjoy the privileges relating therewith Hence, W.P. No. 9391 of 1992 is also ordered as prayed for and a writ of quo warranto is issued against the 3rd respondent Edward Kumar and in favour of the petitioner. However, there will be no order as to costs.
115. The third writ petition viz. W.P. No. 14035 of 1992 has been filed by a practising advocate for the issue of a writ of quo warranto directing respondents 2 to 6 to show cause under what authority they claim their appointment in junior scale (Grade II) and junior scale (Grade I) of the Pondicherry Judicial Service. This writ petition was heard along with the other two writ petitions filed by the Pondicherry Bar Association challenging the appointment of one V.A. Edward Kumar in junior scale (Grade II) and Grade 1 in the Pondicherry Judicial Service.
116. I have heard Mr. Mahimai Raj, learned Counsel for the petitioner and Mr. N.R. Chandran, learned Senior Counsel for the contesting respondents 2 to 5. Mr. S. Mahimai Raj reiterated the contentions raised in the affidavit. ,
117. The case of the contesting respondents viz, respondents 2 to 5, in my view, is totally different from the 6th respondent Edward Kumar and hence, the ground of attack available to the petitioner in W.P. Nos. 3642 and 9391 of 1992 would not be available to the petitioner herein viz. R. Vadivelu.
118. Necessary facts for appreciating the legal contentions may be summarised as under:
(i) On 23.1,1980, the Government of Pondicherry issued Pondicherry Judicial Service Rules, 1980. This rule was amended oh 10.12.1980 and the same was published [in the gazette on 17.12.1980.
(ii) Before the issue of the new Rules, the recruitment to the post of District Munsif and Subordinate Judge was governed by a rule , under Article 309 of the Constitution of India called Pondicherry Judicial Department Rules. Respondents 2 to 5 were practising lawyers and they were recruited under the old Rules and appointed as District Munsifs. The method of selection under the Pondicherry Judicial Department Rules, 1965, was by direct recruitment and the procedure followed by the Government was, (i) calling for application from the eligible candidates; and (2) an interview to be conducted by the Recruitment Committee to assess the merit and suitability of the candidates. The Recruitment Committee consisted of three members, the Chief Judge, Judicial Department, the Chief Secretary of the Union Territory of Pondicherry and the Law Secretary of the Government of Pondicherry.
119. The educational qualifications required for direct recruitment:
Rule 7: Essential: 1. Degree in Law of recognised University of equivalent.
2. About three years experience as a legal practitioner.
3. Must have been enrolled as an Advocate of High Court or Courts in Pondicherry. Qualifications relaxable at Commission's discretion in case of candidates otherwise well qualified.
Desirable: Knowledge of French language.
120. The details of the educational qualification and professional experience of respondents 2 to 5, on the date of direct recruitment are as follows:
________________________________________________________________________________ Sl. Name of the Date of Experience Date of appointment No. respondent enrol- as Advocate as District Munsif and rank ment ________________________________________________________________________________
1. Smt. Pushpa- 2.8.1972 3-1/2 years 19.7.1976. Break Duraiswami Gold as advocate in service from 2nd respon- Medallist on the date 14.1.76 to 14.2.77.
dent. Law. of appointment on medical grounds.
as District Reappointed on
Munsif-cum- 15.2.77 as District
Judicial Munsif-cum-Magistrate
Magistrate. Yanam, Pondicherry,
2. Mr. L. Veera- April Practised, as Appointed as Addi-
nath Rao, 1969 Advocate till tional District
3rd respon- 9.8.1974 Munsif, Pondicherry
dent. Served as on 11.6.1975
Assistant
Public Prose-
cutor Grade I
in the Home
Department,
Pondicherry,
from 9.8.1974
to 4.7.1975
Five years and
four months as
Advocate and 11
months as
Prosecutor. In
all six years
and 3 months as
Advocate and
Prosecutor.
3. G. Patric 4.12.68 Practised as, Appointed on 18.10.76
4th respon- advocate till as Addl. District
dent 3.5.72 for 3 Munsif. Break in
years and 5 service from 15.2.77
months. Served to 7.11.77. Re-
as Assistant appoinited on 8.11.77
Public Prose-
cutor, Grade II,
till 3.7.85
as Asst. Public
Prosecutor
Grade I vice
L. Veeranath Rao
appointed as
District Munsif.
Nine years and
10 months as
Advocate and as
Prosecutor.
4. Rajasuria 20.8.75 Four years and 9.1.1980 as
5th respon- 4 months. Part- Addl. Dist.
dent. time Lecturer Munsif-cum-
for two years. Judicial
On the date of Magistrate,
appointment, M.L. Karaikal.
(first class) in
Criminalogy. Gold
Medallist Diploma
in French.
________________________________________________________________________________
121. The details regarding the service particulars of respondents 2 to 5 are as follows:
________________________________________________________________________________ SI. Name and Rank Date of Date of Order Induction Date of No. of the res- appoint- coming passed to Pondi- Promo-
pondents ment as into under cherry tion
Dist. force of Rule Judicial as Sub-
Munsif new Rules 31 of Service ordinate
according the Judge.
to Govt. new
of Pondi- Rules
cherry
________________________________________________________________________________
1. Smt. Pushpa 19.7.1976 17.12.80 June 83 2.7.1984 18.2.88 Duraiswami (Reappoint-
(2nd res- ed on
pondent) 15.2.1977)
2. Sri L. Veera- 11.6.1975, " " " 19.11.91
nath Rao(3rd
respondent)
3. Sri G. Patric 18.10.1976 " " " 9.12.91
(4th res- (reappointed
pondent) on 8.11.1977)
4. Sri Raja- 9.1.1980 " " " 29.6.92
suria
(5th res-
pondent)
________________________________________________________________________________
122. The nomenclature of the post of District Munsif has been changed as junior scale (Grade II) officer. The nomenclature of the Subordinate Judge was changed as junior scale (Grade I) officer. The nomenclature of District Judge was changed as senior scale (Grade I). Respondents 2 to 5 have been functioning as junior scale (Grade II) from the date of their first appointment as District Munsif. They are promoted as junior scale (Grade I) officers.
123. Now, the petitioner has come forward with this writ petition for quo warranto challenging the appointment of respondents 2 to 6 as junior scale (Grade II) officer (District Munsif) and junior scale (Grade 1) officer (Subordinate Judge) and prays this Court to issue a writ of quo warranto.
124. According to Mr. N.R. Chandran, learned Senior Advocate appearing for the contesting respondents 2 to 5, this writ petition is not maintainable for the following reasons:
(a) The petitioner has no locus standi to file this writ petition because he is a member of the Pondicherry Bar Association which had restricted its relief only against Edward Kumar and has given up the relief in respect of respondents 2 to 5. The petitioner, being a member of the Association, is bound by the stand taken by the Association and hence, the petitioner has no locus standi to maintain this writ petition.
(b) The submissions of Mr. S. Mahimai Raj, learned Counsel for the petitioner, was under the genuine impression that the Association would also challenge the appointment of respondents 2 to 5 and since the Association has given up the attack in respect of the appointment of respondents 2 to 5, the petitioner was constrained to file the present writ petition.
125. I am of the view that this contention of the learned Counsel for the petitioner does not stand scrutiny because of total lack of averment in the affidavit in this regard. In other words, the petitioner Mr. R. Vadivelu has not given reasons in the affidavit filed in support of the writ petition. On the other hand, the averment in paragraph 2 of the affidavit filed in W.P. No. 14035 of 1992 is as follows:
I state that 1 am an advocate practising in Pondicherry and hence has substantial interest and concern in the Administration of Justice in the Union Territory of Pondicherry. Recently, the 6th respondent had been appointed as Judicial Officer in the rank of Sub Judge in Pondicherry and this created adverse reactions from the members of the Bar in Pondicherry and there were also a few days of absention from the Court by the advocates, I, therefore, was prompted to look into the genesis of the judicial appointments made from time to time in the Union Territory of Pondicherry and it appears to me that respondents 2 to 6 have no title to the offices held by them and they are usurpers to their respective offices without legal authority, inasmuch as their appointments have not been made in accordance with the rules. I, therefore, present the above writ petition with a view to ensure that the judiciary in Pondicherry is occupied by persons entitled to the office and appointed in accordance with the rules.
I am of the opinion that the above averment does not support or reflect the argument advanced by the learned Counsel for the petitioner at the Bar and hence, this writ petition has to be rejected on the ground that the petitioner has no locus standi.
This point is answered accordingly.
126. It is urged by Mr. N.R. Chandran, that the writ petition is liable to be dismissed on the ground of laches. As seen above, respondents 2 to 5, unlike the 6th respondent Edward Kumar, are functioning as Judicial Officers right from the date of their first appointment. The 2nd respondent has put in 15 years and 7 months, the 3rd respondent has put in 7 years and 3 months, the 4th respondent has put in 10 years and 2 months and the 5th respondent has put in 12 years and 9 months in Judicial Service. Respondents 2 to 5 Were inducted under the new Pondicherry Judicial Service Rules as early as 2.7.1984 and if the petitioner wanted it challenge their appointments, he should have done so in 1984 itself, inasmuch as the ground now urged was available to him even in 1984. Hence, to file a writ petition after eight years, in my view, is an abuse of the process of Court and the petitioner is trying to unsettle the settled things. In this connection, I would like to rely on the following two decisions.
127. The first decision is reported in P.S. Sadasivaswami v. State of Tamil Nadu A.I.R. 1974 S.C. 2771: I.C. 1431, wherein the Supreme Court has held as follows:
It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But, it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in umine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal.
128. The next decision is reported in Ashok Kumar Misha v. Collector, Raipur , the Supreme Court has observed as follows:
It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it . may reject the petition if it finds that the issue of writ will lead to public inconvenience and interference with rights of others. This rule applies also to a case in which the validity of an election to a local authority is challenged. The question whether in a given case the delay involved is such that it disentitles a person to relief under Article 226 is a matter within the discretion of High Court matters of discretion it has to exercise it Judiciously and reasonably having regard to the surrounding circumstances.
129. Learned Senior Counsel for respondents 2 to 5 submits that the issue of quo warranto is not maintainable. According to him, the quo warranto will lie only in a case of an usurper to a public office. In this case, respondents 2 to 5 are validly appointed by a competent authority and so long as they function under an appointment order issued by a competent authority, it will be an effective answer to a rule issued in a writ of quo warranto What the petitioner is in effect contending is that the said appointments are illegal and he wants this Court to go into the question of validity of the order of appointment incidentally and as a collateral question. Hence, he should have properly filled for issue of a writ of centiorari and invited this Court to go into the question of the validity of the order of appointment. It is in effect a writ of certiorari and therefore, the petitioner is obliged to explain the delay in approaching this Court. Even in a quo warranto this Court can reject the application if it is affected by laches. I am entirely in agreement with Mr. N.R.Chandran on his submissions. In my view, his submissions are well founded on legal principles and merit acceptance. In this connection, I would like to cite the decision reported in Mukhtiar Singh v. State of Punjab , wherein it has been held as follows:
Apart from this, this complaint lacks in bona fides and it appears to have been engineered with ulterior motive by certain interested persons. The respondent was appointed in 197$ and no dispute was ever raised with regard to the correctness of his appointment. The instant move is with some sinister design. A writ of quo warranto is not issued as a matter of right. It is a discretionary relief and the court should consider all the circumstances of the case including lapse of time, and circumstances which would establish laches, acquiescence or estoppel. The rules regarding issuance of discretionary relief were stated thus in Halsbury's Laws of England, 3rd Edition, Volume-II, para. 281 in which it was stated thus:
An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted as a matter of course. It is in the discretion of the court to 'refuse or grant it according to the facts and circumstances of the case...the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its result, or where there was an alternative remedy which was equally appropriate and effective.
Therefore, I hold that this writ petition for issue of quo warrant against respondents 2 to 5 is not maintainable.
130. I shall now consider the merit of the contention of the parties. The main contention of Mr. S. Mahimai Raj, learned Counsel for the petitioner is that the order dated 2.7.1984 appointing respondents 2 to 5 to the Pondicherry Judicial Service is not an order of initial recruitment and therefore is not governed by Rule 8 of the Rules and hence, respondents 1 and 7 ought to have followed the procedure prescribed under Rule 9, in which case, they should have invited application by advertisement and only after the submission of applications, by respondents 2 to 5, they should have been apppinted.
131. The above contention is not tenable for the following reasons. Respondents 2 to 5 were regularly appointed as District Muinsifs under the old Rules, viz., Pondicherry Judicial Department Rules. They were qualified and each was asked to commence probation and all of them satisfactorily completed the probation. With regard to respondents 3 and 4, orders have been passed declaring that they had completed the probation satisfactorily-vide orders dated 9.11. 1977 and 15.3.1979 respectively. With regard to respondents 2 and 5, even though they had completed the probation, they must be deemed to have completed the probation. This, point has been explained in the counter affidavit filed by the 4th respondent C. Patric in paragraphs 13 and 14 and by respondents 2 and 5 in their counter affidavit in paragraph 6.I need not repeat it here again.
132. In view of the above factors, the Government themselves invoked Rule 31 of the Rules and permitted them to continue as if this rule had not come into force. While dealing with the other two writ petitions, I have already extracted Rule 31. So, I need not repeat it again.
133. Mr. R. Krishnamurthi, learned Senior Advocate for the Government of Pondicherry, submits that in File No. 1, from paragraph 11 onwards (commencing from page 3), orders have been issued invoking Rule 3l of the Rules and respondents 2 to 5 were permitted to continue; The purpose of Rule-31 enables the person holding a cadre post to continue until he is appointed to hold a cadre post under the new Rules. So, under Rule 31, there is no question of selection of a person already holding a post at the time of commencement of the Rules and it is only a formal appointment under the new Rules. In view of this, there is no question of existing incumbents submitting their applications and Rule 9 has no application to the existing incumbents. Therefore, their cases should have been dealt with only under Rule 8 which deals with initial recruitment to the service. A person holding the post under a valid rule after going through the process of selection, acquired a right to hold the post even after the new Rules are notified. If such a person is required to go through the process of selection once over again, merely because a new service rule is constituted, replacing the old service, it would violate Article 16 since the entire service which they put in after regular selection is set at naught. This is not the purport of Rule 31 or Rule 8 or Rule 9 of the new Rules. Hence, respondents 2 to 5 are entitled to continue in the posts even after the new service had been constituted by new rules replacing the old rules. The rules relating to selection cannot be applied to respondents 2 to 5 who have been already selected under the old rules and probation declared. Probation in a post can be undergone once and the same has been already completed.
134. The case of respondents 2 to 5 appears to have been dealt with under Rule 8 which deals with initial recruitment. In paragraphs supra while dealing with the other two writ petitions, I have extracted Rule 8 of the Rules and also Rule 2(g). The case of respondents 2 to 5, were dealt with under Rule 8 for appointment to the service under the new Rules and consent as required for initial recruitment under Rule 25 has been obtained from them. They were considered by the High Court and on recommendation by the High Court, they were found fit. Their seniority had been fixed in terms of Rule 8(3) assigning the seniority, taking into account the service put in by respondents 2 to 5 under the old Rules. They were not asked to undergo probation under Rule 14(2) and in their ease, Rule 14(1) was invoked and they were con-firmed from the date of their appointment. In view of these facts, the contention of the petitioner that an advertisement should have been called for the purpose Of fresh recruitment is totally untenable and devoid of merits, The scope of Rule 8 is governed as a transitory measure governing the persons who were functioning at the time of commencement of the Rules. Rule 8 should be read along with Rule 31 and hence, the case of respondents 2 to 5 was considered rightly for initial recruitment to service and they were validly inducted under the new Rules.
135. It is true, that ah order was issued on 25.7.1983 retrospectively appointing 17 persons with effect from 17.12.1980. in this list, but of 17 persons, the names of respondents 2 to 5 were not found. Therefore, another order was passed on 2.7.1984 appointing respondents 2 to 5 along with the 6th respondent Edward Kumar to the new service. The contention of the petitioner is that the second order dated 2.7.1984 is not an order of initial recruitment since it was passed subsequently after an order of initial recruitment had been passed on 25.7.1983. The substance of the contention of the petitioner is, that, the order dated 25.7.1983 is the order relating to first recruitment and that there cannot be any other order regarding initial recruitment on 2.7.1984. This contention is not tenable inasmuch as the scope of Rules 8 and 31 will cover all appointments in respect of persons who were holding office on the commencement of the Rules. Since Rule 8 is a transitory provision, all cases of persons holding office on the date of commencement of the Rules should be governed Only by Rule 8. Hence, the contention of the petitioner in this regard is not correct.
136. Even on merits, when the order dated 25.7.1983 was issued, it included four persons who were not holding office as Judicial Officers as on 25.7.1983. The name of A. Chandrasekhara Menon, Item No. 3 in the said list, ought not to have been found because he was not holding a cadre post oh that date and he was holding the post of Law Secretary in the Government of Pondicherry. Respondents 2 to 5 invited my attention to paragraph 16 of the counter affidavit filed by the 4th respondent, wherein this point has been elaborately dealt with. In other words, the names of respondents 2 to 5 had been erroneously omitted to be included in the order dated 25.7.1983 and they Cannot be deprived of their right to be appointed in the new service. They have been selected regularly under the old Rules and functioning as such. Retrospective appointment made on 25.7.1983 with effect from 17.12.1980 itself is illegal since appointment can be made only to posts existing on the date of appointment and not retrospectively wherein persons who were not in judicial service on 25.7.1983 have been given appointment retrospectively.
137. The writ petition has to be dismissed on another ground also viz., it is hit by acquiescence and the petitioner is estopped from filing this writ petition since no dispute was ever raised with regard to the correctness of the appointment,
138. Mr. N.R. Chandran, learned Senior Advocate, submits that any appointment in accordance with the Rules under Article 309 of the Constitution of India by a competent authority is valid in law provided the eligibility criterion is fulfilled for the vacant posts as on that date and they cannot be termed as usurpers. Pondicherry Judicial Service Rules, 1980, does not supersede the previous rules framed under Article 309 of the Constitution of India. Since the selection, appointment and probation were already covered by the earlier Rules, the formulation of the new Rules cannot wipe out the earlier selection and as such, respondents 2 to 5 are not usurpers to judiciary.
139. In the decision reported in The State of Punjab v. Dharam Singh , the Supreme Court has held as follows:
In the present case, Rule 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is. negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference, that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication.
140. In the decision reported in Shiv Kumar Sharma v. Haryana State Electricity Board, Chandigarh (1988)3 S.L.R. 524, the Supreme Court has observed as follows:
The appellant should have been confirmed on June 10,1965, on which date he had completed two years of his probationary period. As has been stated already, the probationary period was not extended. The board has not laid down any guideline for confirmation. There is no rule showing when an officer of the Board will be confirmed. While there is some necessity for appointing a person in government service on probation for a particular period, there may not be any need for confirmation of that officer after the completion of the probationary period. If during the period of probation a government servant is found to be unsuitable, his services may be terminated. On the other hand/if he is found to be suitable, he would be allowed to continue in service. The archaic rule of confirmation, still in force, gives a scope to the executive authorities to act arbitrarily of mala fide giving rise to unnecessary litigations. It is high time that the govern ment and other authorities should think over the matter and relieve the government servants of becoming victims of arbitrary actions. In this connection, we may refer to the decision in the case of S.B. Patwardhan and Ors. v. State of Maharashtra and Ors. , where Chandrachud, C.J , speaking for the Court Observed as follows: "Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court it is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the Government.
141. In the decision reported in Narender Chadha v. Union of India , the Supreme Court has decided as under
At one stage it was argued before us on behalf of some of the respondents that the petitioners who have not been appointed in accordance with Rule 8(1)(a)(ii) could not be treated as members of the Indian Economic Service or of the Indian Statistical Service at all and hence there was no question of determining the question of seniority as between the petitioners and the direct recruits. This argument has got to be rejected. It is true that the petitioners were not promoted by following the actual procedure prescribed under Rule 8(1)(a)(ii) but the fact remains that they have been working in posts included in Grade IV from the date on which they were appointed to these posts. The appointments are made in the name of the President by the competent authority. They have been continuously holding these posts. They are being paid all along the salary and allowances payable to incumbents of such posts. They have not been asked to go back to the posts from which they were promoted at any time since the dates of their appointment. The orders of promotion issued in some cases show that they are promoted in the direct line of their promotion. It is expressly admitted that the petitioners have been allowed to hold posts included in Grade IV of the aforesaid services, though on an ad hoc basis. (See para 21 of the counter affidavit filed by Shri P.G. Lele, Deputy Secretary, Department of Personnel and Administrative Reforms). It is, therefore, idle to contend that the petitioners are not holding the posts in Grade IV of the two Services in question. It is significant that neither the Government has issued orders of reversion to their former posts nor has anybody so far questioned the right of the petitioners to continue in the posts which they are now holding. It would be unjust to hold at this distance of time that on the facts and in the circumstances of this case, the petitioners are not holding the posts in Grade IV. The above contention is therefore without substance. But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the Government is endowed with the power to relax the Rules to avoid unjust results. In the instant case the Government has also not expressed its unwillingness to continue them in the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts. The only question agitated before us relates to the seniority as between the petitioners and the direct recruits and such a question can arise only where there is no dispute regarding the entry of the officers concerned into the same Grade. In the instant case, there is no impediment even under the Rules to treat these petitioners and others who are similarly situated in Grade IV because of the enabling provision contained in Rule 16 thereof. Rule 16 as it stood at the relevant time read as follows:
16.The Government may relax the provisions of these rules to such extent as may be necessary to ensure satisfactory working or remove inequitable results.
New Rule 16 reads thus:
16. Powers to relax: The Government may in consultation with the Commission and for reasons to be recorded in writing relax any of the provisions of these rules with respect to any class or category of persons or posts and no such relaxation shall be given so as to have retrospective effect'.
142. The last decision on this point is reported in Y. V. Rangaiah v. J. Sreenivasa Rao wherein the Apex Court has held as follows:
The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar, Grade II, will be according to the new rules on the zonal basis and not on the Statewise basis and therefore, there was no question of challenging the new rules. But the question is filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
143. In my view, the writ petition is devoid of merits and vexatious so far as it relates to respondents 2 to 5. However, so far as the 6th respondent Edward Kumar is concerned, I have held in paragraphs supra while dealing with the other two writ petitions that quo warranto has to be issued against him. For the same reason, I hold in this writ petition also that quo warranto has to be issued against him.
144. For the foregoing reasons, W.P. No. 14035 of 1992 is allowed in so far as it relates to the 6th respondent Edward Kumar and a writ of quo warranto is issued against him and in favour of the petitioner. So far as the other respondents are concerned, W.P. No. 14035 of 1992 is dismissed. However, there will be no order as to costs.
145. In the result, W.P. Nos. 3642 and 9391 of 1992 are allowed as prayed for and W.P. No. 14035 of 1992 is allowed in so far as it relates to the 6th respondent Edward Kumar and the same is dismissed against the other respondents. However, there will be no order as to costs in all the writ petitions.
146. Before parting with this case, I would like to refer to the elaborate arguments of Mr. G. Masilamani, learned Senior Counsel for the petitioners in respect of Articles 233 to 237 in Chapter VI of the Constitution of India, and give my ruling on that. The Subordinate Judiciary is governed by Chapter VI consisting of Articles 233 to 237 of the Constitution of India. Article 233 provides for the appointment of District Judges. As per Sub-clause (1) of Article 233, appointment, postings and promotions of District Judges shall be made by the Governor of the State in consultation with the High Court. As per Article 233(2), persons who are already in service and Advocates who have not less than seven years experience shall alone be eligible for appointment as District Judges. Article 236 (b) defines 'Judicial Service' as a service consisting exclusively of persons intended to fill the post of District Judge and other Civil Judicial posts inferior to the post of District Judge. The word 'service' appearing in Article 233(2) has been interpreted to mean only real and true Judicial Service and not any other executive service even if called as Judicial Service.
147. In this connection, I may refer to the decision of the Supreme Court reported in Chandra Mohan v. State of Uttar Pradesh A.I.R. 1966 S. C. 1987: (1967)1 S.CA. 409: (1967)1 S.C.W.R. 153: (1967)1 Lab L.J. 412:14 Fac.L.R. 386: (1967)2 S.C.J. 717 wherein Subba Rao, C.J., speaking for the Bench observed as follows:
The gist of the provisions (Articles 233 to 237 of the Constitution of India) may be stated thus; Appointments of persons to be, and the posting and promotion of District Judges in any State shall be made by the Governor of the State. There are two sources of recruitment, namely (i) service of the Union or of the State, and (ii) members of the Bar. The said Judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court. But in the case of appointments of persons to the judicial service other than as District Judges they will be made by the Governor of the State in accordance with rules framed by him in consultation with the High Court and the Public Service Commission. But the High Court has control over all the District. Courts and Courts subordinate thereto, subject to certain prescribed limitations.
The setting, viz., the chapter dealing with Subordinate Courts, in which the expression 'the service' appears indicates that the service mentioned therein is the service pertaining to Courts. That apart, Article 236(2) defines the expression 'judicial service' to mean a service consisting exclusively of persons intended to fill the post of District Judge and other Civil Judicial posts inferior to the post of District Judge. If this definition, instead of appearing in Art 236, is placed as a clause before Article 233(2), there cannot be any dispute that 'the service' in Article 233(2) can only mean the judicial service. The circumstance that the definition of 'judicial service' finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression 'the service' is used whereas in Articles 234 and 235 the expression 'judicial service' is found is not decisive of the question whether the expression the service' in Article 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with District Judges. The expressions 'exclusively' and 'intended' emphasise the fact that the judicial service consists only of persons intended to fill up the posts of District Judges and other Civil Judicial posts and that is the exclusive service of judicial officers. Having defined 'judicial service' in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a District Judge. We, therefore, construe the expression 'the service' in Clause (2) of Article 233 as the judicial service.
But it is said that this construction ignores Article 237 of the Constitution. We do not see how Article 237 helps the construction of Article 233 (2). Article 237 enables the Governor to implement the separation of the judiciary from the executive. Under this Article, the Governor may notify that Articles 233,234, 235 and 236 of the Constitution will apply to Magistrates subject to certain modifications or exceptions; for instance, if the Governor so notifies, the said Magistrates will become members of the judicial service, they will have to be appointed in the manner prescribed in Article 234, they will be under the control of the High Court under Article 235 and they can be appointed as District Judges by the Governor under Article 233(1). To state it differently, they will then be integrated in the judicial service which is one of the sources of recruitment to the post of District Judges. Indeed, Article 237 emphasises the fact that till such an integration is brought about, the Magistrates are outside the scope of the said provisions. The said view accords with the constitutional theme of independent judiciary and the contrary view accepts a retrograde step.
148. Therefore, Rule 8 of the Pondicherry Judicial Service Rules in so far as the same provides for the appointment of 'Legal Advisers to Government' as District Judges (senior scale in Pondicherry Judicial Service) is ultra vires Article 233(2) of the Constitution of India. As such, any rule and/or appointment made in contravention of Article 233(2) of the Constitution shall be illegal and ultra vires the Constitution. Hence, I am of the firm view, that an executive from the Law Department cannot be appointed to Higher Subordinate Judiciary.
149. Article 234 of the Constitution relates to the recruitment of Judicial Officers other than the District Judges. As per this Article, the appointment of Judicial Officers other than the District Judges shall be made by the Governor of the State in accordance with the Rules framed therefor, after consultation with the High Court and the Public Service Commission. The consultation contemplated under this Article was interpreted as one for the framing of the rules and not as one for making the appointment. Reliance is placed on the decision reported in N. Devasahayam v. State of Madras A.I.R. 1958 Mad. 53: (1958)1 M.L.J. 28: (1957) 70 L. W. 563 : I.L.R. 1958 Mad. 58.
150. Article 235 of the Constitution provides for the control of Subordinate Courts. As per this Article, the control of the Subordinate Courts including postings, promotions, and grant of leave vest with the High Court. However, in respect of District Judges, as per Article 233(1), the orders regarding appointments, postings and promotion shall be issued by the Governor of the State in consultation with the High Court. As regards Judicial Officers other than the District Judges, the orders regarding their postings, promotions, grant of leave, etc., shall be issued by the High Court directly. The Government of a State cannot issue any orders regarding postings, promotions, leave, etc., in respect of Judicial Officers other than the District Judges. Even in respect of the District Judges, orders of appointment, posting and promotion shall be issued by the Governor, that too, in consultation with the High Court. The other matters such as transfers, leave, disciplinary proceedings, etc., shall exclusively vest in the High Court.
151. Separation of judiciary under Article 50 of the Constitution shall become meaningless if matters pertaining to the control of the subordinate judiciary, such as appointments, postings, transfers, promotion, leave, disciplinary action, etc., are left to the discretionary act of the Government.
152. It was brought to my notice at the time of hearing that judicial separation is yet to take place in the Union Territory of Pondicherry. Even to-day, I am told, the control of Subordinate Judicial Officers, which should be exercised by the High Court under Article 234 of the Constitution, is still left with the Government of Pondicherry (Law Department). This is evident from the various orders such as posting, transfers, deputation orders, orders granting leave, etc., are being issued by the Law Department, Government of Pondicherry, to the Judicial Officers in the Pondicherry Judicial Service by simply marking copies to the High Court. Therefore, it is high time that the High Court should assume its constitutional duty in respect of the Pondicherry Judicial Service under Article 235 of the Constitution, without any further loss of time. The Government of Pondicherry shall discontinue the said practice hitherto followed and shall await instructions from the High Court, Madras, in matters relating to transfers, postings, grant of leave, disciplinary proceedings, etc.