IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 WP(C).No. 34161 of 2008(R) -------------------------- PETITIONER(S): --------------- MUHAMMED RAEEZ, AGED 33 YEARS, S/O.MUHAMMED BASHEER, RESIDING IN RUBY NIVAS, MUDAVARAM (P.O), KEEZHVARAM VILLAGE, CHIRAYANKEEZHU TALUK. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): --------------- 1. HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR GENERAL, ERNAKULAM, KOCHI - 31. 2. THE REGISTRAR, SUBORDINATE JUDICIARY, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 3. STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL (SR.) FOR R1-2 SRI.B.UNNIKRISHNA KAIMAL FOR R1-2 BY GOVT. PLEADER SMT. ANU SIVARAMAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No. 34161 of 2008 ------------------------------- Dated this the 24th November, 2008. J U D G M E N T The petitioner, presently a Munsiff-Magistrate in the Kerala Judicial Service, challenges Ext.P6 letter dated 29.10.2008 sent by the Registrar (Subordinate Judiciary) of this Court, informing him that as he has been appointed as Munsiff- Magistrate in the Kerala Judicial Service, as per G.O.(MS) No.120/08/Home dated 25.7.2008 (Ext.P4), he is debarred from taking up appointment as District Judge direct from the Bar. By Ext.P6, the petitioner's request for permission to participate in the viva-voce for selection of District and Sessions Judges in the Kerala State Higher Judicial Service, was declined. 2. The petitioner enrolled as an Advocate with the Bar Council of Kerala on 5.4.1999. By Ext.P1 notification dated 16.4.2007, this Court invited applications from practicing Advocates with not less than 7 (seven) years of standing at the Bar for direct recruitment as District and Sessions Judges in the W.P.(C) No.34161 of 2008 2 Kerala State Higher Judicial Service. The last date fixed in Ext.P1 notification for submission of applications was 30.6.2007. The petitioner applied within the stipulated time. As per Article 233(2) of the Constitution of India, 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. Ext.P1 also incorporated the stipulation in the Constitution that an applicant for appointment to the post of District and Sessions Judge in the Kerala Higher Judicial Service shall be a practicing Advocate and should have so practised for a period of not less than seven years. It is also clarified in Note (3) to Paragraph 3 of Ext.P1 that save as otherwise provided, eligibility shall be determined with reference to the last date fixed for receipt of the applications. 3. The petitioner had earlier applied for appointment as Munsiff-Magistrate in the Kerala Judicial Service. He was selected by this Court and included in Ext.P3 select list as W.P.(C) No.34161 of 2008 3 Serial No.1. The Governor of Kerala thereafter appointed the petitioner and 45 others as Munsiff-Magistrates in the Kerala Judicial Service by Ext.P4 order dated 25.7.2008. The petitioner and the other appointees assumed charge before the Registrar of this Court and thereupon they were deputed for training by Ext.P5 proceedings dated 11.4.2008 issued by this Court. 4. Pursuant to Ext.P1 notification, a written test was held in which the petitioner participated. He was short listed along with 44 other applicants, who were found qualified to be called for the oral examination. On the date on which Ext.P2 was published, the petitioner was a Munsiff-Magistrate undergoing training. Apprehending that he may not be called for the oral test, he applied to the Registrar (Subordinate Judiciary) of this Court for permission to take part in the oral examination for appointment to the post of District and Sessions Judge. By then, the schedule for the oral test was fixed and it is to commence on 1.12.2008 and end with 12.12.2008. By Ext.P6, W.P.(C) No.34161 of 2008 4 the said request was declined. Hence, this writ petition challenging Ext.P6 and seeking the following reliefs. “A. That all records relating to Exhibit-P6 be called to this Hon'ble Court and a writ of certiorari or other order passed quashing Exhibit-P6; B. That the right of the petitioner to take part in the viva-voce for appointment to the post of District and Sessions Judge on the basis of Exhibits-P1 and P2 be declared and the respondents 1 and 2 be directed by a writ of mandamus to allow the petitioner to attend the oral examination (viva-voce) for appointment to the post of District and Sessions Judge on the basis of Exhibits-P1 and P2; C. That the respondents be directed by a writ of mandamus to consider the claim of the petitioner for appointment to the post of District and Sessions Judge on merit and pass order according to law; D. That the petitioner be granted such further reliefs as are appropriate and incidental to this Writ Petition.” W.P.(C) No.34161 of 2008 5 5. I have heard Sri.G.S.Raghunath, the learned counsel appearing for the petitioner and Sri.K.R.B.Kaimal, the learned Senior Advocate appearing on notice for respondents 1 and 2. The learned counsel appearing for the petitioner contends that as the petitioner was qualified on the last date fixed in Ext.P1 notification and was permitted to appear for the written test, the stand taken in Ext.P6 cannot be sustained. The learned counsel, relying on Note (3) to Paragraph 3 of Ext.P1 notification, contends that eligibility has to be determined with reference to the last date fixed for receipt of the application, which in the instant case was 30.6.2007, and as the petitioner was qualified on the last date and has not incurred any disqualification, the decision taken by the respondents not to call him for the oral test is arbitrary and illegal. The learned counsel further contends that the petitioner has not been appointed as Munsiff-Magistrate and that an appointment order will follow only if he successfully completes the training. He therefore contends that the petitioner has not ceased to be a practicing Advocate. Per contra, the learned Senior Advocate appearing for W.P.(C) No.34161 of 2008 6 respondents 1 and 2 contends that ordinarily in service jurisprudence, if a qualification is prescribed, the applicant should possess the prescribed qualifications on last date fixed for submission of applications and that an applicant who is qualified on the last date will always continue to be qualified even after the last date. The learned Senior Counsel further submits that if Post Graduate Degree in Chemistry is prescribed as the qualification for appointment to the post of Lecturer in Chemistry, an applicant for the said post should necessarily have the said qualification on the last date fixed for such post. He further submits that an applicant who is thus qualified will continue to be qualified even after the last date, unless by reason of a supervening event, the degree which the candidate possesses is cancelled by the University for some valid reason. The learned Senior Advocate further submits that in the instant case, the qualification for appointment constitutionally prescribed is that the applicant should be a member of the Bar or in other words, a practicing Advocate with not less than seven years practice. The learned Senior Advocate elaborating on the point submitted W.P.(C) No.34161 of 2008 7 that 7 (seven) years practice at the Bar is the minimum eligibility and that as the recruitment is direct from the Bar, the applicant must continue to possess that qualification even after the last date fixed for submission of applications. In the instant case, the petitioner who was appointed as Munsiff-Magistrate by Ext.P4 Government Order dated 25.7.2008, based on the recommendations made by this Court, cannot any longer claim that he is a practicing Advocate and therefore, he is not eligible to be considered for appointment as District and Sessions Judge in the Kerala State Higher Judicial Service, it is contended. 6. I have considered the submission made at the Bar by the learned counsel appearing on either side. The fact that the petitioner was qualified on the last date fixed in Ext.P1 notification for submission of applications is not in dispute. The Registrar (Subordinate Judiciary) has in Ext.P6 rejected the petitioner's request for participating in the viva-voce for selection of District and Sessions Judges, on the ground that he does not continue to possess the qualification prescribed in W.P.(C) No.34161 of 2008 8 Ext.P1. While the learned counsel appearing for the petitioner contends that the relevant date to determine eligibility is the last date fixed in Ext.P1 notification for submission of applications, the learned Senior Advocate appearing for respondents 1 and 2 contends that an applicant for the post of District and Sessions Judge in the Kerala State Higher Judicial Service seeking appointment by direct recruitment from the Bar, should not only be qualified on the last date fixed for submission of applications, but even thereafter. In other words, the applicant should continue to be a practicing Advocate, it is contended. 7. As noticed earlier, in the case of educational qualifications, the qualification will continue to exist even after the last date fixed for receipt of the application. In other words, the mere fact that the notification inviting application stipulates that the applicant should be qualified on the last date does not necessarily imply that the qualification can disappear after the said date. In the case of educational qualification, the candidate will continue to be qualified even after the last date, unless by a W.P.(C) No.34161 of 2008 9 supervening event, he is found to be disqualified. In the instant case, the qualification prescribed for direct recruitment of District and Sessions Judge from the Bar is that the applicant should be a practicing Advocate with not less than seven years of practice. The Special Rules for the Kerala State Higher Judicial Service stipulate that a candidate for appointment to the category of District and Sessions Judge from the Bar shall be a practicing Advocate and should have so practiced for a period of not less than seven years. This prescription is in tune with Article 233(2) of the Constitution of India. In the instant case, though the petitioner was a practicing Advocate on the last date fixed, viz., 30.6.2007, he ceased to be a practicing Advocate, on being appointed as Munsiff-Magistrate in Kerala Judicial Service by Ext.P4 Government Order dated 25.7.2008. Pursuant to the said appointment, by Ext.P5 proceedings dated 11.8.2008, he was also deputed for pre-service training with effect from 18.8.2008 in the Kerala Judicial Academy, Ernakulam. The said training is in progress and is to conclude shortly, after which the petitioner W.P.(C) No.34161 of 2008 10 will be given a posting as Munsiff-Magistrate as indicated in Ext.P5 itself. 8. In my considered opinion, with the appointment of the petitioner as Munsiff-Magistrate, by Ext.P4 Government Order dated 25.7.2008, he ceased to be a practicing Advocate. In other words, he became disqualified by a supervening event. The same would have been the situation, if he had been appointed in any other service or in any other category of post also. The appointment of District and Sessions Judges direct from the Bar can only be of a practicing Advocate, and the moment the applicant ceases to be a practicing Advocate, he becomes ineligible to hold the post. In other words, the applicant should continue to be qualified even after the last date fixed for submission of applications. 9. It is contended that in Ext.P1, it is not stipulated that the applicant should continue to be qualified even after the last date. This is for the reason that ordinarily if one is qualified on the last date, he will continue to be qualified unless W.P.(C) No.34161 of 2008 11 by a supervening event, he becomes disqualified. In the instant case, by a supervening event, due to the appointment of petitioner as Munsiff-Magistrate, he ceased to be a practicing Advocate. The petitioner cannot therefore seek appointment as District and Sessions Judge direct from the Bar as a practicing Advocate. The request made by the petitioner in Ext.P6 for permission to attend the viva-voce was rightly declined in Ext.P6. 10. The learned counsel for the petitioner further contends relying on Article 233(2) of the Constitution of India the that embargo is on appointment only and not on attending the viva-voce. The learned counsel for the petitioner further contends that the petitioner is therefore entitled to be called for the viva-voce. I am afraid, there is no merit in the said contention as well. Viva-voce is not an empty formality. It is a method of selection. If the petitioner is ineligible to be appointed, I find no logic in the submission of the learned counsel for the petitioner that even if the petitioner is not eligible to be W.P.(C) No.34161 of 2008 12 considered for appointment, he is entitled to be called for the viva-voce. For the reasons stated above, I hold that there is no merit in the Writ Petition. The Writ Petition fails and is accordingly dismissed. P.N.RAVINDRAN, JUDGE nj.