IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16..06..2008 CORAM The Honourable Mr. Justice A.K. Ganguly, Chief Justice and The Honourable Mr. Justice F.M. Ibrahim Kalifulla Writ Petition No.13896 of 2008 M. Radhakrishnan .. Petitioner versus 1. State of Tamil Nadu, Rep. by the Secretary to Government, Home Department, Secretariat, Chennai-9. 2. High Court of Judicature at Madras, Rep. by the Registrar General, High Court, Chennai-104. 3. The Controller of Examinations and Secretary (Incharge), Tamil Nadu Public Service Commission, Chennai-2. .. Respondents - - - - - Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring Clause (3) below the column "Qualification (4)" against Sl.No.9 of the Schedule to the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as amended vide G.O. (Ms) No.500, Home (Courts- 1) dated 3 May, 2008 and Advertisement No.164 issued by respondent No.3 as unconstitutional and void. - - - - - For Petitioner : Mr. M. Radhakrishnan (Party-in-Person) For Respondent-1 : Mr. Raja Kalifulla, Govt. Pleader - - - - - https://hcservices.ecourts.gov.in/hcservices/ O R D E R ( Delivered by The Honourable Chief Justice ) Heard Mr. M. Radhakrishnan in person, who is a practising advocate of this Court and also the learned Government Pleader for the State. The challenge in this writ petition is to the notification issued by the Government in the Tamil Nadu Government Gazette Extraordinary dated 19.1.2007, prescribing therein the method of appointment, qualification and age for recruitment to the post of Civil Judge (Junior Division), hereinafter referred to as 'the said post'. The petitioner-in-person submits that while prescribing qualification for appointment to the aforesaid post, in Column-4, the following qualification has been prescribed : "Must be a fresh Law Graduate possessing a degree in law from a recognized University as mentioned in clause (1) above, who is eligible to be enrolled or enrolled as an Advocate and who has secured at the final year examination of the Degree in law not less than an average of 50% marks in case of open categories. In respect of the other reserved categories, they must have secured an average of 45% marks. Fresh Law Graduates are those who have obtained the degree of Law within a period of three years prior to the date of notification." The only challenge which has been canvassed before us by the petitioner is that fresh law graduates possessing a degree in law from a recognised university have been made eligible, even if they are not enrolled as advocates, but are eligible to be enrolled. 2. According to the petitioner, such a qualification goes against the very concept of a judicial office. According to him, a person who is eligible to be enrolled may also mean a person who has not applied for enrolment, even though he may be eligible, but such a person has the requisite qualification under the impugned rules to apply for being considered for appointment to the said post. 3. According to the petitioner, prescription of such a qualification is against the norms of judicial office and also contrary to the judgment of the Honourable Supreme Court in the case of All India Judges' Association vs. Union of India reported in (2002) 4 S.C.C. 247. In that judgment, a learned three Judge bench of the Supreme Court was dealing with matters relating to appointment in subordinate judiciary. In paragraph 32 of that judgment, the learned Judges were referring to a previous judgment of another three Judge bench of the Supreme Court in the case of All India Judges' Association vs. Union of India reported in (1993) 4 S.C.C. 288. In the 1993 judgment, it has been observed in paragraph 52, "The legal practice of three years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy". In paragraph 32 of the 2002 https://hcservices.ecourts.gov.in/hcservices/ judgment also, the same insistence of three years practice has been repeated in cases of applicants for appointment to judicial service. But in the same paragraph, relaxation has been given in favour of the State Government by saying, "We, accordingly, in the light of the experience gained after the judgment in All India Judges' case, direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in three years of practice, but eligible to compete and enter the judicial service. We, however, recommend that a fresh recruit into the judicial service should be imparted training of not less than one year, preferably two years". 4. By referring to the aforesaid observations of the Supreme Court, the petitioner urged that the intention of the Apex Court is that the insistence of three years standing at the bar can be relaxed, but unmistakably, it is made clear that the applicant must have some experience at the bar. The petitioner submits that following the aforesaid ratio of the Supreme Court, it cannot be said that a fresh law graduate, who is merely eligible to be enrolled, but has not yet applied for being enrolled, can also be allowed to apply for appointment to the post of Civil Judge (Junior Division). 5. This Court finds that the aforesaid rules have been framed by the State Government after due consultation with the High Court and it is expected that the High Court has duly applied its mind to the aforesaid question and the decisions of the Apex Court. We are also of the opinion that an applicant for the post of Civil Judge (Junior Division) should not only be eligible for being enrolled, but must apply for being enrolled. We find that the said view which we have taken is consistent with the advertisement which has been issued by the Tamil Nadu Public Service Commission pursuant to the aforesaid notification. 6. In these facts and circumstances, we clarify the said qualification clause by holding that the words in Clause-3 of Column- 4 under Serial No.9 of the Schedule to Rule 5 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007, which read, "Must be a fresh Law Graduate... who is eligible to be enrolled or enrolled as an Advocate..." should be read as "Must be a fresh Law Graduate... who is eligible to be enrolled and enrolled as an Advocate...". In our view a harmonious reading of the aforesaid qualification clause suggests that construction to read here the word 'or' as meaning 'and' conjunctively and not disjunctively. We are reading the said clause as above in order to make it workable and consistent with the aforesaid decisions of the Supreme Court in All India Judges' Association (supra). Recently, in Gujarat Vikas Nigam Ltd. v. Essar Power Ltd. (2008 (4) SCC 755), the Apex Court relying on G.P.Singh's Principle of Statutory Interpretation (9th Edition, 2004, p.404) held sometime 'or' can mean 'and' and vice versa (Page 765). https://hcservices.ecourts.gov.in/hcservices/ 7. We make it clear that the recruitment process may proceed as per the advertisement issued by the T.N.P.S.C. on 10.5.2008 and as clarified by us. The writ petition is thus disposed of. No costs. Consequently, M.P. No.1 of 2008 is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Secretary to Government, State of Tamil Nadu, Home Department, Secretariat, Chennai-1. 2. The Registrar General, High Court of Judicature at Madras, High Court, Chennai-104. 3. The Controller of Examinations and Secretary (Incharge), Tamil Nadu Public Service Commission, Chennai-2. + 1 CC To Mr.M.Radhakrishnan, Advocate SR NO.30456 + 1 CC to the Government Pleader SR NO 29942 W.P. No.13896 of 2008 RA(CO) SRA(11/07) https://hcservices.ecourts.gov.in/hcservices/