IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26..08..2010 CORAM THE HON’BLE Mr.M.Y.EQBAL, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE T.S.SIVAGNANAM W.P.Nos. 16383, 15566 & 18451 of 2010 & W.P.(MD) Nos.9090 & 9119 of 2010 & M.P.Nos.1 & 2 of 2010 in W.P.No.16383 of 2010, 1 of 2010 in W.P.No.15566 of 2010, 1+1 of 2010 in W.P.(MD)No.9090/2010, 1 to 4 of 2010 in W.P.No.9119 of 2010 & 1 of 2010 in W.P.18451 of 2010 W.P.No.16383 of 2010 K.Appadurai, S/o.P.Kandavel, Bathrakaliamman Koil Street, Vadugapatti (PO), Periyakulam Taluk, Theni District. ..Petitioner. Vs. 1. The Secretary to Government, Public (Special.A) Department, Government of Tamil Nadu, Secretariat, Chennai – 600 009. 2. The Principal Secretary to Government, Social Welfare & Noon Meal Project (SW4) Department, Government of Tamil Nadu, Secretariat, Chennai – 600 009. ..Respondents. PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus calling for the records relating to the impugned notification issued by the 1st respondent in the Internet and published in the https://hcservices.ecourts.gov.in/hcservices/ Hindu dated 1.7.2010, inviting application for Direct Recruitment and Appointment for the post of District Judges (Entry Level) and quash the same and consequently direct the 1st respondent herein to publish afresh notification in a transparent manner indicating the number of vacancies ear-marked for disabled applicants in accordance with Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and pass such further or other orders. For Petitioner :: Mr.M.Venkadesan For Respondents :: Mr.J.Raja Kalifulla, Govt. Pleader W.P.No.15566 of 2010 Manikandan Vathan Chettiar, Advocate, 28, Sait Colony, 1st Street, Chennai – 8. ..Petitioner. Vs. 1. The Secretary to Government, Public (Special.A) Department, Secretariat, Chennai. 2. The Registrar General, High Court, Madras. ..Respondents. PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of declaration declaring that propounding the impugned notification dated 24.06.2010 issued by the 1st respondent as ultra vires Articles 14 and 141 of the Constitution of India, and direct the respondents to issue a de novo notification in consonance with all constitutional diktats and render justice. For Petitioner :: V.Manikandan Vathan Chettiar (Petitioner in Person) For Respondent-1 :: Mr.J.Raja Kalifulla, Govt. Pleader For Respondent-2 :: Mr.R.Muthukumaraswamy, Senior Counsel For Mr.K.Ravichandrababu https://hcservices.ecourts.gov.in/hcservices/ W.P.No.18451 of 2010 M.Selvaraj, M.Sc., L.L.M., S/o.Sri. S.V. Munuswamy, Hindu, aged about 47 years, No.26, A, IAF Road, Srinivasan Nagar, Selaiyur, Chennai – 73. ..Petitioner. Vs. The State of Tamil Nadu, Rep. by Secretary to Government, Public (Special.A) Department, Secretariat, Chennai – 600 009. ..Respondent. PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ in the nature of declaration declaring the rule of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional and consequently, the notification dated 24.06.2010 issued by the respondent also be declared unconstitutional and thus render justice. For Petitioner :: Mr.G.Justin For Respondent :: Mr.J.Raja Kalifulla, Govt. Pleader W.P.(MD)No.9090 of 2010 R.Vidhya, No.5-7/28-3, Anupallavi Nagar, Kalai Nagar Extension, Madurai – 17. ..Petitioner. Vs. 1. The Secretary to Government, Public (Special.A) Department, Secretariat, Chennai. 2. The Registrar General, Madras High Court, Chennai. 3. The Bar Council of India, New Delhi. 4. The Bar Council of Tamil Nadu, High Court Campus, Chennai – 104. ..Respondents. (R3 and R4 are impleaded as party respondents as per order of the Court dated 16.07.2010 in W.P.(MD) No.9090/10) https://hcservices.ecourts.gov.in/hcservices/ PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records of the 1st respondent in Ref.No.DIPR/841/display/2010 dated 24.06.2010 and to quash the notification issued by the Secretary to Government (Special.A) Department in Ref. No.DIPR/841/display/2010 dated 24.06.2010 in so far inviting application from Assistant Public Prosecutor Grade I and II and pass any appropriate orders and thus render justice. For Petitioner :: Mr.N.Sundareshan For Respondent-1 :: Mr.P.Kumaresan, Public Prosecutor For Respondent-2 :: Mr.R.Muthukumaraswamy, Senior Counsel For Mr.K.Ravichandrababu For Respondents3&4 :: Mr.P.S.Raman, Advocate General For Petitioner in M.P.1/10 :: Mr.K.Doraiswamy, Senior Counsel (Impleading Petition) For Muthumani Doraisamy W.P.No.9119 of 2010 B.Ramesh Babu, S/o.Balaguru, Flat No.2956, TNHB Colony, Villapuram, Madurai – 1. ..Petitioner. Vs. 1. The Registrar General, High Court of Madras, Chennai. 2. The State of Tamil Nadu, Rep. by its Secretary, Public (Special.A) Department, Secretariat, Chennai. 3. The Chairman, Co-ordination Committee for The Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Committee, Department of Social Welfare, State of Tamil Nadu, Secretariat, Chennai. ..Respondents. https://hcservices.ecourts.gov.in/hcservices/ PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamusto call for the records of the 2nd respondent pursuance to his proceeding Nil dated 24.06.2010 which was published on 1.7.2010 and quash the same in so far as the petitioner is concerned and direct the respondents to include the physically disabled persons to be appointed as District Judge direct selection and reserve a post by giving effect to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and pass such other or further orders. For Petitioner :: Mr.K.P.S.Palanivel Rajan For Respondent-1 :: Mr.R.Muthukumaraswamy, Senior Counsel For Mr.K.Ravichandrababu For Respondent-2 :: Mr.P.Kumaresan, Public Prosecutor C O M M O N O R D E R The Hon’ble The Chief Justice Since, in all these writ petitions the petitioners have attacked and assailed the notification calling for application for appointment to the post of District Judges (Entry Level) on various grounds, they have been heard together and disposed of by this common order. 2. For better appreciation, the notification published in the daily newspaper “The Hindu” on 01.07.2010 issued by the Government of Tamil Nadu, Public (Special.A) Department is reproduced herein under. “GOVERNMENT OF TAMIL NADU Public (Special.A) Department, Secretariat, Chennai – 600009. NOTIFICATION CALLING FOR APPLICATIONS FOR THE POST OF DISTRICT JUDGES (ENTRY LEVEL) Applications are invited by the Government of Tamil Nadu for appointment of seventeen (17) posts of District Judges (Entry Level) in the Tamil Nadu State Judicial Service to be made by direct recruitment under the amended provisions of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 from Advocates or Pleaders in India who have not less than seven years practice and Practising as on the date of this notification. https://hcservices.ecourts.gov.in/hcservices/ The distribution of the above said 17 vacancies is as follows: General Turn - 4 (1 Woman) Scheduled Caste - 1 (1 Woman) (Arunthathiyars on preferential basis) Most Backward Classes & - 4 (1 Woman) Denotified Communities Backward Classes - 4 (1 Woman) (Other than Backward Class Muslims) Scheduled Caste - 3 (1 Woman) Backward Class Muslims - 1 ----- Total - 17 ----- The reservation in recruitment in respect of differently abled persons is governed by the orders issued in G.O.Ms.NO.87, SW&NMP (SW-4_ Department, Dated:17.7.2008. 2. An Applicant should be of sound health and active habits and free from any bodily defect or infirmity making him/her unfit for appointment. The 17 posts of District Judges (Entry Level) shall be filled by direct recruitment from among the eligible advocates on the basis of the written and viva-voce test prescribed and to be conducted by the High Court of Madras in accordance with the rules. 3. A candidate shall along with his application: (i) If he/she is an Advocate or Pleader, produce from the Presiding Officer of the Court in which he/she is actually Practising, a certificate indicating the length of his/her practice; (ii) If he/she is an Assistant Public Prosecutor, Grade-I or an Assistant Public Prosecutor, Grade – II, produce from the Collector of the District concerned, a certificate indicating the length of his/her service. (iii) Produce a certificate of good character, from a Senior Advocate/Counsel and another from a responsible person, not being a relative but who is well acquainted with him/her in private life. 4. The selection shall be made based on the results of written examination and viva voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva voce shall be 75% and 25% respectively. https://hcservices.ecourts.gov.in/hcservices/ 5. The notification, enlisting the successful candidates prepared under these rules shall be published in the Tamil Nadu Government Official Gazette and it shall cease to be operative as from the date of Publication of the next list of successful candidates prepared under these rules, in the Tamil Nadu Government Official Gazette. 6. (i) The applicant must possess a Degree in Law of a University in India established or incorporated by or under a Central Act or a State Act or an institution recognized by the University Grants Commission, or any other equivalent qualification and got enrolled in the Bar Council of Tamil Nadu; and in the case of candidates enrolled in the Bar Councils of other States, they should submit proof of transfer of their enrollment to the Bar Council of Tamil Nadu. (ii) The applicant must be Practising on the date of Notification as an advocate and must have so practiced for a period of not less than seven years as on such date. (iii) The applicant must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year 2010. (iv) The scale of pay for the post of District Judges is Rs.16750-400-19150-450-20500/- (Pre-revised Scale) 7. The written examination will be of 3 hours duration involving Law Paper Part – I (Civil), Law Paper Part – II (Criminal) and Law Paper Part – III (General) carrying 25 marks each (75 marks total) and 25 marks is ear-marked for viva-voce. The Question Papers on Law Paper Part – I, II & III will be set in English as well as in Tamil. The candidates shall answer either in English or in Tamil/ but not in both. The written examination will precede the viva-voce examination. As to short listing the candidates, their length of practice at the bar and the marks obtained by them in the written examination will be considered and such short listed candidates alone will be called for viva-voce examination. 8. The application in the prescribed format shown below along with the attested copes of certificates as required should be sent by Registered Post with acknowledgement due to the Secretary to Government of Tamil Nadu, Public (Special.A) Department, Secretariat, Chennai – 600 009 so as to reach the office on or before 5.45 pm on 16.07.2010. Candidates should check up the correctness of https://hcservices.ecourts.gov.in/hcservices/ the particulars furnished in the application. Candidates should submit only one application for the post. The written examination will be held at Chennai on 01.08.2010 and the venue of examination will be intimated later by the High Court of Madras. Candidates shall enclose a Demand Draft for Rs.250/- (Rs.100/- in case of SC candidates) towards examination fee payable by way of Demand Draft in favour of the Registrar General, High Court of Madras along with the application form. Two passport size photographs of the candidate (one to be affixed in the application from) and a copy of latest community certificate shall be enclosed. 9. No traveling allowance will be paid to the applicant for attending written examination/interview and for joining the post if he/she is selected. 10. Every person appointed to the post of District Judge by direct recruitment shall, (a) from the date on which he/she joins duty, be on probation for a total period of two years on duty within a continuous period of three years; (b) undergo training as prescribed by the High Court of Madras. (c) within the period of probation, pass the Account Test for Executive Officers. Only after satisfactory completion of the training, the direct recruit will be posted as District Judge. …………. …………. …………. “ 3. W.P.(MD)No.9090 of 2010 was filed in Madurai Bench of the Madras High Court. The petitioner therein sought issuance of a writ of certiorari for quashing the notification as contrary to Article 14 of the Constitution of India as the service personnel and the non- service personnel form a different class. It is stated that a person not already in service of the Union or of the State shall only be eligible to be appointed, if he had been for not less than 7 years of service as Advocate or Pleader. The main contention of the petitioner therein is that the Assistant Public Prosecutors Grade – I and Grade –II, who were employees under the State Government, drawing salary from the exchequer, are not entitled to and eligible for appearing in the examination. https://hcservices.ecourts.gov.in/hcservices/ 4. In W.P.No.16383 of 2010 and W.P.(MD)No.9119 of 2010 the aforesaid notification was challenged on the ground that the said notification does not indicate the number of vacancies earmarked for disabled candidates in accordance with Section – 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is stated that while distributing the 17 vacancies against each category, it does not show the category of disabled persons and reservation in the distribution of vacancies to disabled persons. According to the petitioner, the rule of 3% reservation for disabled persons is applicable for mass appointment in every establishment. The said minimum of 3% has been adopted as per Section-33 read with Section 2(k) of the aforesaid Act of 1995. The petitioner’s case is that the disabled persons constitute a special category, and reservation by government for them is a special drive to ensure and guarantee equal opportunities to them in the society. 5. In W.P.No.15566 of 2010 the above referred to notification was challenged on the ground that apart from 100% marks, the length of bar experience is stated as a criteria for short listing the candidates to appear in the viva-voce, without any explanation as to the manner in which it is proposed to be done. The petitioner’s case is that as per the decisions of the Supreme Court the marks allotted to the viva-voce shall not exceed 12.50% of the total marks, whereas the impugned notification prescribes as much as 25% of the marks to the viva-voce, which is unconstitutional. The impugned notification also suffers from serious illegality in as much as apart from 100% marks the length of bar experience is stated as a criteria for short listing the candidates for viva-voce without giving any explanation as to the manner in which it is proposed to be done. The petitioner also challenged the notification on the ground that no syllabi has been prescribed for the examination, which is contrary to all canons of reasonableness. 6. In W.P.No.18451 of 2010 the petitioner sought for a declaration to declare that the Rules of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional, and consequently the impugned notification issued by the respondent for appointment to the post of District Judges (Entry Level) as also ultra vires and unconstitutional. It is stated that the candidates in the subordinate judicial service as Magistrates, Sub Judges and District Munsifs, who have put in 7 years of practice before their appointment in such service, can also be made eligible to appear for the examination for the recruitment of District Judges as in the case of Assistant Public Prosecutors Grade-I and Grade-II. According to the petitioner therein, the Assistant Public Prosecutors Grade – I and Grade II are employees of the State and they are not pleaders. The respondents having made eligible the Assistant Public Prosecutors Grade – I and Grade – II, it is wholly unjustifiable to exclude the Magistrates, District Munsifs and Sub Judges to appear for the examination, as they are also government servants, and they must also be given a chance for their career advancement based on merit. https://hcservices.ecourts.gov.in/hcservices/ 7. In W.P.(MD)No.9090 of 2010 a counter affidavit has been filed by the second respondent therein viz., the Registrar General, High Court, Madras. It is stated that as per the order of the Supreme Court in W.P.(C) No.1022 of 1989 dated 21.03.2002, the Full Court of the Madras High Court re-drafted the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007 and the Draft Rules were approved by the Government of Tamil Nadu, which came into effect from 19.01.2007. It is stated that pursuant to the order passed by a Division Bench of this Court in W.P.Nos.14499 of 2009 & Batch on 01.12.2009 and 26.02.2010 the Government was directed to forward the Draft Notification calling for applications containing the application proforma to fill up 17 posts of District Judges (Entry Level) by direct recruitment from the Bar for approval of the High Court as per the Rules. The Draft Notification forwarded by the Government was considered and approved by the High Court, and accordingly, the Government published the notification impugned in the writ petition. It is stated that as per Serial No.3(iii) of the Schedule to Rule – 5 of the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007 applications were invited for appointment of 17 posts of District Judges (Entry Level), and it was mentioned that the candidates, along with their application, shall furnish the certificates mentioned therein. The second respondent justified the notification by referring to Article 233 (2) of the Constitution, which would include Law Officers practising before a Court of Law. Hence, according to the second respondent the notification inviting applications from Advocates/Pleaders, Assistant Public Prosecutors Grade – I and II for appointment to the post of District Judge (Entry Level) is perfectly justified. 8. In the separate counter affidavits filed by the first respondents in W.P.(MD)No.9119 of 2010 the common stand taken are that the Government of Tamil Nadu in G.O.Ms.No.87 dated 17.07.2008, issued orders to adhere to the system of 200 point roster, dividing into six classifications granting an equal ratio of 1:1:1 to the disabled category i.e., Blind, Deaf and Orthopaedically challenged as far as possible and to select differently abled persons among the 33 vacant posts in each division. It is stated that though the nature of duties and responsibilities attributed to the post of District Judge (Entry Level) requires persons free from certain disabilities like blindness, total deafness, etc. so as to discharge his official duties, every possible steps have been taken to give equal opportunities to the eligible disabled persons, and hence, the operation of the relevant G.O. in respect of differently abled persons in the present selection process was not notified in the notification calling for applications. 9. In W.P.No.15566 of 2010 the main defense taken by both the respondents are that as per the recruitment rules the selection shall have to be made based on the result in the written examination and the viva-voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in their written examination and viva-voce taken together, subject to the rule of reservation for appointments. The maximum marks allotted to the written examination https://hcservices.ecourts.gov.in/hcservices/ and the viva-voce shall be 75% and 25%. It is stated that the marks fixed for the viva-voce i.e., 25% is neither violative of any rules nor against the decisions of the Supreme Court. 10. First, we will take up the writ petition being W.P.No.9090 of 2010 wherein the notification inviting applications for appointment for the post of District Judge (Entry Level) was challenged on the ground that inviting the applications from the Assistant Public Prosecutors Grade - I and II for appointment to the said post is illegal and unconstitutional, and against the provisions of Article 223 of the Constitution of India. 11. Before coming to this issue, it would be useful to state here the brief history about the procedure for appointment for the post of District Judges (Entry Level). Before independence, originally, the post of District and Sessions Judges and Additional Sub Judges were filled by persons from Indian Civil Service. In 1922, the Governor General in Council issued notification empowering the local government to make appointment to the said service from the Members of Provincial Civil Service (Judicial Branch) or from the Members of the Bar. In exercise of the power conferred by Section 246 and 250 of the Government of India Act, 1935, the Secretary of State for India framed Rules called Reserved Post (Indian Civil Service) Rules, 1938. Under those Rules the Governor was given power to appoint a District Judge from among the Members of the Judicial Service of the Province or from Members of the Bar. Till India attained independence the position was that the District Judges were appointed by the Governor from these sources i.e., Indian Civil Service, Provincial Judicial Service and the Bar. But, after independence in 1947 recruitment to the Indian Civil Service was discontinued and the Government of India decided that the Members of the newly created Indian Administrative Service would not be given judicial post. Thereafter, District Judges had been recruited only either from the Judicial Service or from the Bar. 12. Article 233 deals with the appointments, postings and promotion of District Judges in any State. Article 234 deals with the recruitment of persons other than District Judges to the judicial service. Article 233, which is relevant here, is quoted herein below: “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 a 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.” https://hcservices.ecourts.gov.in/hcservices/ 13. From a bare reading of Art. 233, it is manifest that it is a self-contained provision regarding the appointment of District Judges. A qualification has been laid down in clause (2) of Art. 233 as to who will be eligible for the said post. The provision in Art. 233 (2) has been discussed in series of decisions rendered by the Supreme Court and various High Courts. The expression “service” used in clause (2) of Art. 233 means the judicial service. 14. In Satya Narain Singh Vs. High Court of Judicature, Allahabad reported in AIR 1985 SC 308 the facts of the case were that pursuant to the notification for appointment of District Judges by direct recruitment, members of the Uttar Pradesh Subordinate Judicial Service applied to the Uttar Pradesh Higher Judicial Service by direct recruitment. They claimed that each of them have completed 7 years of practice at the Bar even before their appointment to the judicial service and they are eligible to be appointed by direct recruitment to the higher judicial service. The said writ petition was dismissed by the High Court holding that the members of the Uttar Pradesh Judicial Service were not eligible to be appointed by direct recruitment. The matter ultimately went up to the Supreme Court. Dismissing the writ petitions their Lordship’s, after quoting Art. 233 of the Constitution, observed :- “Para-3: ………The first clause deals with ‘appointments of persons to be, and the posting and promotion of, District Judges in any State’ while the second clause is confined in its application to persons ‘not already in the service of the Union or of the State’. We may mention here that ‘Service of the Union or of the State’ has been interpreted by this Court to mean judicial service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommend a person for appointment as a District Judge. It is only in respect of the persons covered by the second clause that there