Document Fragment View

Matching Fragments

Joseph, J.

Several important and interesting questions arise for our consideration in this batch of Writ Petitions coming up by reference by a learned Single Judge, Justice T. R. Ramachandran Nair. What is the effect of the founding fathers providing for seven years experience as an Advocate to be eligible for appointment as a District Judge in Article 233(2) ? Does the acceptance of the Report of the Shetty Commission by the Apex Court in the decision in All India Judges' Association And Others v. Union of India And Others((2002) 4 SCC 247) (hereinafter referred to as the All India Judges case) amount to declaration of law ? What is the impact of the amendment in the Kerala Higher Judicial Service Rules, 1961 (hereinafter referred to as the Rules) prescribing the qualification of WPC.2021/09R & CONN.CASES 2 minimum age as thirtyfive and the maximum age as fortyfive for appointment as a District Judge on the rights of the writ petitioners, who had applied for selection and passed the written test prior to the amendment?

5. Shri K. Jayakumar, learned counsel appearing for the petitioner in W.P.(C). No.19032/09 would, apart from adopting the contentions of Shri Jaju Babu, contend as follows:

The amendment to the Rules which is impugned by him is ultra vires of Article 233(2) of the Constitution. According to him, the prescription of a minimum age limit of thirtyfive years would be opposed to the prescription of the eligibility condition of seven years experience as an Advocate. He would submit that subordinate legislation cannot, if it does not square with the constitutional provisions, survive judicial scrutiny. He would submit that the prescription of eligibility to be appointed as a WPC.2021/09R & CONN.CASES 9 District Judge being only that the candidate should have seven years practice would impliedly exclude the fixation of the minimum age of thirtyfive years. He would expatiate and submit that if the candidate has seven years of practice and thus fulfills the requirement of Article 233(2), an age limit which is incompatible with the prescription of seven years as the eligibility condition is impermissible. He would contend that without an amendment to Article 233, the amendment was illegal. 
WPC.2021/09R & CONN.CASES        31

                  FINDINGS:

20. Whether the Amended Rule is valid And Whether it is ultra vires Article 233(2) of the Constitution ? Article 233 reads as follows:

"233. Appointment of District Judges.-(1) 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 in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed as District Judge, if he has been for not less than seven years an Advocate or a Pleader and is recommended by the High Court for appointment."

As far as the contention that the prescription of age limit is ultra vires of Article 233(2), we are of the view that there is no merit in the contention. Article 233(2) undoubtedly provides that in order that a person be considered eligible, he should have seven years of experience as an Advocate. It is quite clear that the WPC.2021/09R & CONN.CASES 32 founding fathers only intended to incorporate the requirement as to practice, i.e. the number of years of standing that an Advocate should possess to render him eligible. We find it inconceivable that the founding fathers would have considered it not being open to the appropriate authority to prescribe qualifications which do not directly conflict with the constitutional mandate. Take for instance: the prescription of good character as a qualification. The prescription of good character is an objective and universal prescription for appointments in all situations. In fact, the possession of good character would be of the utmost importance for a person who is to hold the judicial post. We find, in fact, that good character is prescribed in the Rules as one of the qualifications for appointment as District Judge. Can it be said that prescription of character by the appropriate authority in consultation with the High Court is liable to be found incompatible with the dictate of Article 233(2) ? We certainly think not. It is to be further noted that it is not as if by the prescription of the age limit, the law WPC.2021/09R & CONN.CASES 33 giver is providing for a qualification contrary to what is provided in Article 233(2) of the Constitution. If for instance, the Rule was amended to provide for a qualifying period of less than seven years, it would be in the teeth of the constitutional embargo. Apart from the fact that this is an amendment which is necessitated by reason of the acceptance of the Shetty Commission in the All India Judges' case by the Apex Court, on an interpretation of the provision, we do not see any warrant for the contention that Article 233(2) will not brook any prescription as to age as is sought to be done. The legislative power is undoubtedly present. In fact, if we were to accept the case of the petitioners, then it would rob the legislative body of power to provide for many of the other indispensable qualifications for appointment to a post of vital importance, namely the post of a District Judge. We do not think that an amendment to Article 233(2) was indispensable to sustain the validity of the amended Rule. We do not think that the petitioners have made out any case to declare the amendment to WPC.2021/09R & CONN.CASES 34 the Rule as bad. Certainly, the amendment which is based on the recommendation of the Shetty Commission and accepted by the Apex Court and also recommended by the High Court, cannot be found to be irrational or arbitrary in any manner. We also do not find any merit in the contention that it is ultra vires Article 233 of the Constitution.