IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM AND THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 9874 of 2008 Between: 1 Mohd. Abdul Javeed Pasha S/o. Abdul Mazeed H.No. 9-345, Chityala, Nalgonda Dist. 2 K.Swapna Rani S/o. Venkat Raj R/o. Gayatri Sarada Nilayam, Nizampet Road, Kukatpally, Hyd.-500072 3 Konda K.V. Buli Krishna S/o. Satyanarayana Murthy R/o. 11-60, Veerabhadrapuram, bandarulanka, Amalapuram Mandal, E.G.Dist. ..... PETITIONERS AND 1 The High Court of A.P., Hyderabad, Rep. by its Registrar (General ). 2 The Govt. of A.P., Rep. by its Secreatary, Legislative Affairs & Justice, Secretariat, Hyd. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly, one in the nature of Writ of Mandamus directing the respondents to consider the petitioners for appointment to the post of Junior Civil Judge as they been selected as per their merit, by setting aside the rejection order dated: 31-07-2007 issued by the 1st respondent as the same is illegal, arbitrary, unjust and violative of fundamental rights guaranteed Under Article 14, 16 and 21 of the Constitution of India and if necessary by reading down the proviso to Rule 12(b) (3) of A.P. State Judicial Service Rules issued in G.O.Ms.No. 2207 dated: 04-11-1962 and consequentially direct the respondents to issue posting to the petitioners as per their merit. Counsel for the Petitioners:MR.M.TATAJI Counsel for the Respondents : (SC FOR APHC) D.V.SITHARAM MURTHY The Court made the following : THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO.9874 OF 2008 O R D E R (Per Sri Justice P.V.Sanjay Kumar) Three Law Clerks/Legal Assistants who cleared the hurdles of the selection process for appointment to the posts of Junior Civil Judge are before this Court, aggrieved by the obstacle put up by the respondents with regard to their basic eligibility to aspire for the said posts. The Government of Andhra Pradesh, the second respondent herein, vide G.O.Rt.No.850 dated 22.06.2006 sanctioned the appointment of Law Clerks/Legal Assistants to the Honourable Judges of the High Court. Thereupon, the High Court of Andhra Pradesh, Hyderabad, the ﬁrst respondent herein, issued notiﬁcation dated 02.08.2006 calling for applications from eligible candidates to be appointed to the 40 available posts of Law Clerks/Legal Assistants. The petitioners, having applied for the same and having been found eligible, were appointed as Law Clerks/Legal Assistants and were directed to work with the Honourable Judges of the A.P. High Court by order dated 05.02.2007. While so, the ﬁrst respondent issued Notiﬁcation No.1/07 dated 14.05.2007 calling for applications from eligible candidates for appointment to 105 posts of Junior Civil Judges. The petitioners submitted their applications dated 11.06.2007, which were rejected by the ﬁrst respondent by its order dated 31.07.2007. Aggrieved thereby the petitioners and three others, who were similarly situated, ﬁled W.P.No.17120 of 2007 before this Court. In pursuance of the interim order dated 10.08.2007 granted by this Court in that writ petition, the petitioners were permitted to participate in the selection process. The ﬁnal selection list was published in the Newspapers on 09.02.2008 indicating that the petitioners herein were also selected. However, appointment orders were not issued in favour of the petitioners and it is stated that the petitioners came to know that the respondent authorities had taken a decision to delete their names from the selection list on the ground that they were ineligible to aspire for the posts of Junior Civil Judge as per Rules. In this regard, it is relevant to note that the rejection of the petitioners’ candidature by order dated 31.07.2007 of the ﬁrst respondent was on the ground that they were neither practising Advocates nor were they Government Servants as required under Rule 12(b) (3) of the A.P. State Judicial Service Rules notiﬁed under G.O.Ms.No.2207, Home (Personnel A), dated 04.11.1962 (for short, ‘the Rules of 1962’). Rule-12 of the Rules of 1962 is as hereunder: “12. General Qualiﬁcations:- (a) No person shall be eligible for appointment to the service unless – (i) he is a citizen of India; (ii) his character and antecedents are such as to qualify him for such appointment; and (iii) he is of sound health and active habits and free from any bodily defect or inﬁrmity making him unﬁt for such appointment. (iv) Special qualiﬁcations :- No person shall be eligible for appointment to the post of Judicial Magistrate of the Second Class or Junior Civil Judge by the method speciﬁed in column (1) of the table below unless he possesses the qualiﬁcations speciﬁed in the corresponding entries in column (2) thereof:” Thereunder, for the purpose of direct recruitment to the post of Junior Civil Judges it is stated as follows: Sl. No Name Qualifi- cation Age Date of Enrolment and No. Place of practice Period of practice Date of joining as L.A. in APHC . Md.Abdul Javeed Pasha LL.B 26 04.11.2004 2241/2004 Ranga Reddy 04.11.04 to 01.02.07 02.02.07 By Direct recruitment Junior Civil Judges 1. Must not have completed 32 years of age; 2. Must be actually practising as an advocate of a High Court in India or as a First Grade Pleader admitted as such by a High Court in India, provided that in the case of a candidate who is a First Grade Pleader he must have been in possession of a degree in Law of University i n India established or incorporated by or under a Central Act, Provincial Act or a State Act or an Institution recognised by the University Gr a n t s Commission at the time of his admission as a First Grade Pleader; 3. Must have been actually practising in a Court of Civil or Criminal jurisdiction in India for not less than three years; Provided that in the case of a person who is already in Government service and who applies for appointment to the post of Junior Civil Judge by direct recruitment, he must have actually practised for a period of not less than three years immediately prior to the date of his entering Government service.” It is the case of the petitioners that prior to their appointment as Law Clerks/Legal Assistants, all of them had practised as Advocates. Details in this regard are furnished by the petitioners separately and are as follows: . K.Swapna Rani LL.B 25 18.08.2005 1093/2005 Hydera- bad 18.08.05 to 18.01.07 19.01.07 3. K.K.V.B. Krishna LL.B 27 20.07.2006 620/2006 Amala- puram 20.07.06 to 16.01.07 17.01.07 As stated hereinbefore, the order dated 31.07.2007 rejecting their candidature on the ground of their not fulﬁlling the conditions prescribed in the Rule was challenged by the petitioners in W.P.No.17120 of 2007. As they were permitted to participate in the selection process pursuant to the interim order granted by this Court in that writ petition and were successful therein, it appears that the said writ petition was dismissed by the order dated 26.03.2008 passed by a Division Bench of this Court. The order dated 26.03.2008 reads as follows: “The question raised in this writ petition with regard to validity of Rule 12(b)(3) of the Andhra Pradesh State Judicial Service Rules need not be gone into at this stage. By reason of the interim order passed by this court all the petitioners appeared for the screening test as well as the written examination. It is also brought to the notice of this bench that petitioners 3, 4 and 6 have also come up to the stage of interview. Therefore learned counsel for the petitioners does not press the writ petition. The question raised is left open to be agitated in the appropriate case. The writ petition is accordingly dismissed. No costs.” Petitioners 3, 4 and 6 referred to in the said order are no other than the petitioners herein. However, the respondents acting upon the dismissal of the above writ petition are said to have refused to process the petitioners’ appointment in spite of their being selected on merit. It is stated that a decision was taken by the ﬁrst respondent on the administrative side on 25.04.2008 that as W.P.No.17120 of 2007 was dismissed by order dated 26.03.2008, the earlier interim order granted therein permitting the petitioners to participate in the selection process did not survive and accordingly, they were ineligible to be considered for the posts of Junior Civil Judge as per the Rules of 1962. It is the case of the petitioners that their appointment as Law Clerks/Legal Assistants does not in any way decimate their eligibility to be considered for the posts of Junior Civil Judge and that the respondents had misconstrued the provisions of the Rules of 1962. They rely upon the deﬁnition of “Law clerk” set out in Wikipedia, the free encyclopaedia which is said to be as follows: “A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are secretaries for the court.” Working as a clerk is generally considered a prestigious occupation within the legal community. Most law clerks are recent law school graduates who were at the very top of their class and graduated from the most prestigious law school. Various studies have shown clerks to be inﬂuential in the formation of case law through their inﬂuence on judges; decisions. Working as a law clerk generally opens up career opportunities”. The experience of Law Clerks discussed in ‘Law Clerk Employment Information’ is as follows: “A judicial clerkship provides direct insight into the judicial process and is a valuable and enriching experience. A law clerk gains practical experience by attending judicial proceedings, performing legal research, and providing other assistance to the judge. Law clerks also are exposed to the methods and customs of practitioners, and learn the level of professional behaviour expected of lawyers. Many former law clerks ﬁnd that the prestige and experience associated with service as a federal judicial law clerk broadens their future employment opportunities.” The petitioners contend that they have gained rich experience and exposure by working as Law Clerks which would in fact be helpful to them in discharge of the judicial functions entailed by their appointment to the posts of Junior Civil Judge. Their prayer in the writ petition is that they should either be treated on par with Government servants or in the alternative, Rule 12(b)(3) of the Rules of 1962 should be read down, if necessary, so as to permit them to be considered for appointment to the posts of Junior Civil Judge on the basis of their merit in the selection process. By order dated 28.05.2008 this Court directed that the respondents shall not ﬁll-up the vacancies against which the petitioners were selected. A counter-aﬃdavit is ﬁled by the ﬁrst respondent contesting the claim of the petitioners on various grounds, including the technical one of res judicata. According to the ﬁrst respondent, the petitioners, having unconditionally withdrawn W.P.No.17120 of 2007 which was for the same relief, cannot maintain the present writ petition. On merits, it is contended that the petitioners were ineligible for consideration for appointment to the posts of Junior Civil Judge under Rule 12 of the Rules of 1962. The claim of the petitioners that they should be treated on par with Government Servants is denied. It is stated that the petitioners were permitted to participate in the selection process only because of the interim orders passed by this Court in Writ Petition No.17120 of 2007 and consequent to the dismissal of the said Writ Petition, the beneﬁt which accrued to the petitioners under the said interim orders disappeared. The action of the respondents in seeking to delete the names of the petitioners from the merit list prepared in pursuance of the selection is therefore sought to be justified. The learned counsel appearing for the petitioners contends that the action of the respondents in overlooking the cases of the petitioners for appointment to the posts of Junior Civil Judge in spite of their being selected on merit, citing the ground of their alleged ineligibility, is unsustainable. He relied upon the Judgments of the Supreme Court in ALL INDIA JUDGES’ ASSOCIATION V/s. UNION OF INDIA[1] and B.VEERAKUMAR V/s. SECRETARY, TAMIL NADU PUBLIC SERVICE[2] to support his contention that Law Clerks/Legal Assistants were eligible to be considered for appointment to judicial posts in spite of their not being in active practice at the Bar. We are not inclined to accept the technical plea raised by the ﬁrst respondent with regard to the maintainability of this writ petition. A reading of the order passed in Writ Petition No.17120 of 2007 makes it clear that the said order proceeded on the assumption that the cases of the petitioners herein, who had successfully cleared the selections and had come upto the stage of interview, would be dealt with in continuation of such selection process and accordingly, this Court held that it was not necessary to go into the issues sought to be raised by them in that writ petition. The dismissal of the said writ petition therefore does not preclude the petitioners from agitating their claims in the present writ petition. It is relevant to note that the A.P. State Judicial Service Rules, 1962 were repealed by the A.P. State Judicial Service Rules, 2007, notiﬁed vide G.O.Ms.No.119, Law (L.A. & J – SC.F) Department, dated 02.08.2008 (for short, ‘the Rules of 2007’). The Rules of 2007 came into force with eﬀect from 01.01.2007. Rule-5 of the Rules of 2007 speaks of eligibility for being appointed to the State Judicial Services and under Rule-5(2) the eligibility conditions for appointment to the posts of Civil Judges (hitherto known as ‘Junior Civil Judges’) are prescribed. Rule-5(2), to the extent of its relevance to this case, reads as hereunder: “5(2) Civil Judges: a ) By direct recruitment: A person to be appointed to the category of Civil Judges shall be: i) A holder of a degree in law awarded by any University established by Law in India. ii) A person who has not completed the age of thirty ﬁve years; and iii) A person of sound health and active habits and free from any bodily defect or infirmity, which render him, unﬁt for such appointment.” It would be noticed that under the above Rule, a person to be appointed to the category of Civil Judges is no longer required to be in active practice at the Bar as was required under Rule 12 of the Rules of 1962. Further, the Rules of 2007 came into force with eﬀect from 01.01.2007 and the selection process initiated for appointment to the posts of Junior Civil Judge under the notiﬁcation dated 14.05.2007 is deemed to be governed by the new Rules. In that view of the matter, the basic ineligibility attributed to the petitioners by the respondents, relying upon the Rules of 1962, does not survive. Further, the Judgments of the Supreme Court cited by the petitioners are also of signiﬁcance. I n ALL INDIA JUDGES’ ASSOCIATION’s case (1 supra), the Supreme Court was dealing with the eligibility of legal assistants working in institutions other than Courts for manning judicial posts. The Supreme Court observed that Legal Assistants working in institutions other than the Courts cannot be permitted for such appointments on the ground that they should be treated as having experience at the Bar. Such Legal Assistants, according to the Court, did not get the experience and exposure which is important for the purpose of manning judicial posts. By necessary implication, Legal Assistants working in the Courts would not suﬀer the said disqualiﬁcation of Legal Assistants working in other institutions and must accordingly be held to be eligible for the purpose of appointment to judicial posts. I n B.VEERAKUMAR’s case (2 supra), the petitioner, a Law Oﬃcer in Allahabad Bank, sought appointment to a judicial post. The Supreme Court relying upon its earlier judgment in SUSHMA SURI V/s. GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI (1999) 1 SCC 330, held that a Law Oﬃcer of the Central or State Government, public corporation or of a body corporate, having already been enrolled as an Advocate, must be deemed to be a practising lawyer. Accordingly, the petitioner therein was found to be eligible for consideration. In the light of the above precedents, it is manifest that the stand of the respondents that the petitioners were ineligible on the ground that they were Law Clerks/Legal Assistants and not practising Advocates appears to be without substance. It is not necessary for us to go into the issue as to whether the posts of Law Clerks/Legal Assistants held by the petitioners should be treated as being equivalent to posts of Government servants. The Judgments of the Supreme Court referred above clearly manifest that Law Clerks/Legal Assistants working in the Courts should be deemed to be eligible for appointment to judicial posts. In that view of the matter, neither the plea of the petitioners that they should be treated on par with Government Servants nor the denial by the ﬁrst respondent in this regard need to trouble us further. The said question is left open to be decided in an appropriate case. In any event, in view of the Rules of 2007 which substituted the Rules of 1962, the ground of ineligibility perceived by the respondents does not survive or attach to the petitioners. It is not denied by the respondents that the petitioners are entitled to be appointed to the posts of Junior Civil Judge in terms of their demonstrated merit in the selection process. The action of the respondents in refusing appointment to the petitioners to the posts of Junior Civil Judge cannot therefore be countenanced. Accordingly, there shall be a direction to the respondents to consider the cases of the petitioners for appointment to the posts of Junior Civil Judge in terms of their merit in the selection process without reference to the Rules of 1962. Needless to state, the appointment of the petitioners, if otherwise found ﬁt and eligible, shall be as per the roster points allotted to them in the selection list. Consequently, the writ petition is allowed. There shall be no order as to costs. ------------------------------- GODA RAGHURAM, J. ---------------------------------- P.V.SANJAY KUMAR, J. 15th NOVEMBER, 2008. PGS ( PD ) THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR W.P.NO.9874 OF 2008 (Per Sri Justice P.V.Sanjay Kumar) 15th NOVEMBER, 2008. [1] (1998) 8 SCC 771 [2] 2005-T LMAD-0-301