CD (WA/ Lniulsion Ewch IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (ca) WRIT PETITION (S) N0.I% ($3 12011 IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA ; AND IN THE MATTER OF CHHATTISGARH LOWER JUDICIAL SERVICE (RECRUITMENT AND CONDITIONS OF SERVICE) RULES, 2006 ; AND BETWEEN : / PETITIONER : Vivek Kumar Vishwakarma. son of Shri Narayan Prasad Vishwakarma, aged about 29 years, resident of Near Dubey Nursing Home, Tellpara, Bilaspur, District Bilaspur, Chhattisgarh VERSUS 1. / High Court ofChhattisgarh,throughthe Registrar‘General, High Court, Bodri, Bilaspur 495220, Chhattisgarh RESPONDENTS 2. State of Chhattisgarh, through the Secretary, Department of Law, Mantraiaya, D.K.S Bhawan, Raipur, Chhattisgarh 3. Chhattisgarh Public Service Commission. through it’s Secretary, Shankar Nagar Road, Raipur, Chhattisgarh WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT IN THE NATURE OF MANDAMUS AND FOR ISSUANCE OF OTHER SUITABLE WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS “MD-v Amrito Das, Awgwww HIGH COURT OF CHHATTISGARH : BILASPUR W. P. (S) No. 1863 of 201 1 Petitioner Respondents High Court of Chhattisgarh 85 others WRIT PETITOIN UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA DB: Hon’ble Mr, I. M. Quddusi, w Vivek Kumar Vishwakarrna Versus Hon’ble Mr. Prashant Kumar Mishra, JJ. Shri Amrito Das, Advocate for the petitioner. Shri Vinay Harit, Deputy Advocate General for the respondent N03 / State. None for the respondents No. 1 and 3. o R D E R (oral) ( Passed on this 8th day of April, 201 1 ) Per I. M. Quddusi, J. We have heard learned counsel appearing for the writ petitioner as ewell as learned Deputy Advocate General appearing for the State an perused the pleadings and documents available on record. This writ petition has been filed by the petitioner seeking following reliefs : “(10.1) This Hon’ble Court may kindly be pleased to issue an appropriate writ directing respondent No.1 to penrf candidates who are appearing in the final auar examination of LLB Degre'é Course to participate "n the preliminary examination. This Hon’ble Court may kindly be pleaser‘ ’3 issue an appropriate writ quashing and setting aside Clause Four (c) of the notification / advertisement No. 01/S&A Cell/2011 dated 07.03.2011 (ANNEXURE P—I,‘ to the extent the LLB Degree is sought b;J'Ore 08.04.201 1. This Hon’ble Court may kindly be pleased to issue an appropriate writ declaring Rule 7, Ruie 9 and Rule 1 0 of (10.2) (10.3) 2 d the Chatisgarh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 2006, as being ultra vires. (10.4) This Hon’ble Court may kindly be pleased to issue an ‘ appropriate 'writ quashing and setting aside the entire proceedings having being conducted. on the basis of Rule 9 and Rule 10 pursuant to the notihcation / advertisement No. 01/S&A Cell/2011 dated 07.03.201 1 (ANNEXURE P-l). " The brief facts of the case, as projected by the petitioner, are that the petitioner is a student of Final Year LLB (Bachelor of Law) degree course, studying in D. P. Vipra Law College, Bilaspur, the final examination of which commenced on 10.3.2011 and completed on 4.4.2011. While the petitioner was appearing in the final year LLB examination an advertisement dated 7.3.2011 (Annexure P/ 1) was issued by the High Court of Chhattisgarh inviting applications from the eligible candidates for Preliminary Examination 2011 to be held for appointment on the post of Civil Judge (Entry Level). According to the advertisement the last date for receipt of application in the Registry is 8th April 2011 till 5.00 p.rn. and‘ the date of Preliminary Examination is 26m June, 201 1. 4. According to the provisions of Rule 7 (1) (c) of the Chhattisgarh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 2006 the eligibility criteria for a candidate for appointment on the post of Civil Judge (Entry Level) is possession of a degree in law of any recognized university but according to Clause Four (c) of the advertisement dated 7th March, 2011 the ‘Essential Qualification’ is “Bachelor degree of law from a recognized University. Degree must be obtained till the last date of receipt of application in the Registry i.e. 8th ‘Aprii, 201 1”. \ ® 5. According to the petitioner, above condition mentioned in the advertisement of having a bachelor degree of law from a recognized University as on 8th April, 2011 is Wholly illegal and arbitrary. Because of this condition the petitioner who is otherwise eligible to appear in the selection process has been rendered ineligible. This condition is contrary to the provisions of the Rules, 2006 as it excludes and disqualifies the petitioner, Whose result for LLB Final Year examination for the session 2010—2011 is awaited and likely to be declared in the month of May, 201 1. First of all we deal with the provisions of Rule 7, 9, and 10 of the Chhattisgarh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 2006 (hereinafter referred to “the Rule 2006”) the Vires of which has been challenged before this Court. Rule 7 of the Rules 2006 provides for the ‘Eligibility’ criteria and it has been inter alia provided in Rule 7(1) (c) that no person shall be eligible for appointment to posts in category (a) of sub—rule (1) of Rule 3 (i.e. Civil Judge — Entry Level) unless, he or she possesses a degree in law of any recognized University. Rule 9 of the Rules, 2006 provides for “Committee’s Decision about Eligibility of Candidate”, according to which ‘the decision of the Committee as to eligibility or otherwise of the candidate for admission to the examination shall be final”. Rule 10 of the Rules, 2006 provides for the ‘List of Candidates Recommended by the Committee’. Sub—rule (l) provides that ‘the Committee shall forward to the Government a list arranged in order of merit of the candidates qualified for the post. The list shall be published for general information and sub—rule (2) provides that ‘subjebt to the provisions of these Rules and Chhattisgarh Civil @ Services (Gencral Conditions of Service) Rules, 1961, candidates shall be considered for appointment to the available vacancies in the order in which their names appear in the list’. 10. In the definitions given in clause (b) of Rule 2 of the Rules, 2006 “Committee” means Committee for recruitment consisting of three Judges of the High Court nominated by the Chief Justice. 11. In the instant case, with regard to Rule 7(1)(c), the eligibility for appointment is possession of degree in law of any recognized university. We are unable to understand as to what should have been the qualification for appointment for the post of Civil Judge (Entry Level) according to the petitioner, as Without having a degree in law a person cannot be appointed as Judicial Officer, even he could not be registered as an Advocate under the Advocates Act, 1961. 12. With regard'to Rule 9 and 10 of the Rules, 2006, learned counsel appearing for the petitioner Shri Amrito Das has submitted that the appointment/recruitment of the judicial officers, other than district Judges, can only be made after consultation With the State Pubhc Serv1ce Commiss1on as enVisaged 1n Article 234 of the Constitution and therefore, as the decision of the Committee shall be final and the name of the selected candidates shall be forwarded to the Government, as mentioned in Rule 9 and 10, respectively, ultra vires the Constitution. 13. In the above regard, a perusal of Article 234 of the Constitution shows that 'th‘e Rules can be made by the Governor of the State in consultation with the State Public Service Commission and with the High Court, exercising the jurisdiction in relation to such State, regarding appointment of persons, other than district judges, to the judicial service of a State but nothing has been mentioned therein ( @D that once the Rules have been framed and given effect to further consultation of the Public Service Commission is mandatory. 14. Further, in Malik Mazhar Sultan (3) and another Vs. Uttar Pradesh Public Service Commission and others (2008) 17 SCC 703, Hon’ble Apex Court in paragraph 5 has laid down that the authorities concerned would consider, discuss and eventually may arrive at a consensus that the selection process be conducted by the High Court itself or by the Public Service Commission under the control and supervision of the High Court. Therefore, in View of this, the provisions of Rule, 7, 9 and 10 of the Rules 2006 are, in our‘opinion, intra vires the Constitution. 15. Article 820 (3)(a) of the Constitution of India provides that the State Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts, provided that in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. In the instant case, as the Rules have been framed and given effect to as provided under Article 234 of the Constitution of India by the Governor of the State in consultation with the State Public Service Commission and the High Court, in our opinion, no further consultation of the Public Service Commission is mandatory. 16. Hon’ble Apex Court in Pradyat Kumar Bose Vs. The Hon’ble Chief Justice of Calcutta High Court, AIR 1956 SC 285 has held that the Officers and members of the staff attached to a High Court clearly fall Within the scope of the phrase “persons appointed to public services and posts in connection with the affairs of the State” and also of the phrase “a person who is a member of a civil service of a State” as used [N @D in Article 310 and 311 of the Constitution of India. The phrase K persons serving under the Government of India or the government of a State “seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice, Who under Constitution, has the power of appointment and removal and of making rules for the conditions of services. Therefore, for the dismissal of the Registrar of the Original Side of the High Court, prior consultation with the Public Service Commission is not necessary. 17. Hon’ble Supreme Court in Ram Gopal Chaturvedi Vs. State of Madha Pradesh AIR 1970 SC 158, referring to its earlier decision in State of U.P; Vs. Manbodhan Lal Srivastava AIR 1957 SC 912 has held that provisions of Article 320(3)(c) are not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action, on the submission that the impugned order was passed without consulting the State Public Service Commission under Article 320 (3)(c) of the Constitution. 18. With regard to the prayer for allowing the petitioner/candidates to appear in the examination, who has/have not possess the degree of law so far, this Court cannot amend the statutory rules made under Article 234 of the Constitution. It is well settled that the Court cannot function as an executive and cannot exercise the jurisdiction vested in the executives. Therefore, there is no scope of interference by this Court in the Rules, 2006 and the advertisement issued pursuant to those Rules, 2006. 19. Further, in the Malik Mazhar Sultan (3) and another (supra) the time schedule has been given by the Hon’ble Apex Court to conduct the examination in question and the same is strictly adhered to and therefore, there is no question of interference in the selection process, at this stage, by this Court. In the result, the writ petition fails and is dismissed at the admission stage itself. At this stage learned counsel for the petitioner Shri Amrito Das has submitted that the petitioner/candidates may be given liberty to move' a representation before the High Court/Committee to permit the petitioner/candidates, who appeared in the LLB final year examinations and Whose results is to be declared in the month of May, 2011. We have not restricted the petitioner/candidates for the same and it is always open for him/them to move representation / representations. l Thakur Sd/- I.M.Quddusi 1 Sd/- Judge Prashant Kumar Mishra Judge