PETITIONER: ALL INDIA JUDGES' ASSN. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT12/08/1994 BENCH: VENKATACHALLIAH, M.N.(CJ) BENCH: VENKATACHALLIAH, M.N.(CJ) MOHAN, S. (J) CITATION: 1994 AIR 2771 1994 SCC (6) 314 1994 SCALE (4)5 ACT: HEADNOTE: JUDGMENT:
ORDER
1. All these IAs can be dealt with under a common order.
2. In All India Judges’ Assn. v. Union of India1, when
directions were sought from this Court for setting up an All
India Judicial Service and for bringing about uniform
conditions of service and perks for members of subordinate
judiciary throughout the country, the following directions
as mentioned in paragraph 63 of the said judgment were
issued : (SCC pp. 140-41)
“(i) An All India Judicial Service should be
set up and the Union of India should take
appropriate steps in this regard.
(ii) Steps should be taken to bring about
uniformity in designation of officers both in
civil and the criminal side by 31-3-1992.
(iii) Retirement age of judicial officers be
raised to 60 years and appropriate steps are
to be taken by 31-12-1992.
(iv) As and when the Pay
Commissions/Committees are set up in the
States and Union Territories, the question of
appropriate pay scales of judicial officers be
specifically referred and considered.
(v) A working library at the residence of
every judicial officer has to be provided by
30-6-1992. Provision for sumptuary allowance
as stated has to be made.
(vi) Residential accommodation to every
judicial officer has to be provided and until
State accommodation is available, Government
should provide requisitioned accommodation for
them in the manner indicated by 31-12-1992. In
providing residential
accommodation,availability of an office room
should be kept in view.
(vii) Every District Judge and Chief
Judicial Magistrate should have a State
vehicle, judicial officers in sets of five
should have a pool vehicle and others would be
entitled to suitable loans to acquire two-
wheeler automobile within different time-
limits as specified.
(viii) In-service Institute should be set up
within one year at the Central and State or
Union Territory level.”
3. Review Petitions were filed seeking review of the
judgment. With regard to the qualification for
recruitment to judicial posts in the lower rung, it was held
in All India Judges’ Assn. v. Union of India2 in paragraph
20 as under: (SCC p. 301)
“It is hence, necessary that all the
States prescribe the said minimum practice as
a lawyer as a necessary qualification for
recruitment to the lowest rung in the
judiciary.”
This review was done on 24-8-1993.
1 (1992) 1 SCC 11 9: 1992 SCC (L&S) 9: (1992) 19 ATC 42
2 (1993) 4 SCC 288: 1994 SCC (L&S) 148: (1993) 25 ATC 818
316
4. In IA No. 14 of 1994, the State of Kerala is the
petitioner. It seeks three clarifications :
(i) Whether Rule 5(3) of the Kerala Judicial
Service Rules, 1991 can be retained as it is;
(ii) Whether the directions contained in
paras 20, 24 and 52(a) of the judgment will
apply retrospectively to the service
candidates who are already working as judicial
officers;
(iii) Five years’ legal practice prescribed as
minimum qualification for appointment to the
lowest category of judicial service namely
Munsif-Magistrates requires to be amended
since Rule 10(1) prescribes five years’
standing for the Advocates as three years’
practice.
5. IA No. 15 has been filed by the Kerala High Court Staff
Association and others again seeking clarifications that
under Kerala Subordinate Magisterial Service Rules,
1962, appointment to the cadre of Sub-Magistrate, the lowest
rung in judicial hierarchy, was by transfer from among
prescribed categories. These rules along with Kerala Civil
Judicial Service Rules, 1973 and Kerala Criminal Judicial
Service Rules, 1973 came into force with effect from 18-9-
1973. Both these rules provided for appointment of service
personnel to the lowest rung in each service from out of
category of persons having experience in law through
courts without actually having practice at the Bar. On and
from 1-1-1992, the Kerala Judicial Service Rules integrated
both the services i.e. Kerala Civil Judicial Services and
Kerala Criminal Judicial Services provided for direct
recruitment by transfer from among the categories like
Assistant Public Prosecutor, Grade-1, Grade-II, Assistant
Registrars, Private Secretary to the Chief Justice and other
officers of the High Court.
6. This method of appointment was not brought to the
knowledge of this Court when this Court was dealing with the
fixation of qualification of appointment. Thus, it is
submitted that the requirement of legal practice for a
minimum three years applies only in the case of direct
recruitment from the Bar and not for appointment by
transfer from service personnel as provided under the Rules
made in exercise of the power under Article 234 of the
Constitution.
7. IA No. 16 of 1994 is an application for intervention
by the High Court of Kerala, represented by the Registrar,
High Court of Kerala.
8. Mr Altaf Ahmed, learned counsel appearing for the State
of Kerala in IA No. 14 would urge that the prayers in the
IAs are highly necessary so that the position of the service
candidates may be settled. The officers enumerated under
Rule 5(3) of Kerala Judicial Service Rules have knowledge
and are acquainted with substantive and procedural laws.
They require to be treated on par with advocates having
experience in the Bar.
9. Then again, under Rule 10(1) of said rules, a minimum
five years’ standing in the Bar has been prescribed.
Whether they could be retained, is a matter which requires
clarification.
317
10. Mr P.S. Poti, teamed Senior Counsel appearing for the
applicant in IA No. 16 of 1994 would strongly plead that
having regard to the rules which contemplate the rule by
transfer which is one of the sources of appointment, that
rule may be retained because experience has shown that these
various categories of persons have not been found wanting
either in integrity or capacity to do judicial work. In
their cases, the requirement of three years’ minimum
practice at Bar should not be insisted upon.
11. We have given our careful consideration to the facts of
the instant case. This Court in All India Judges’ case2
(review) held in paragraph 20 as
under: (SCC p. 301)
“It is, hence, necessary that all the States
prescribe the said minimum practice as a
lawyer as a necessary qualification for
recruitment to the lowest rung in the
judiciary.”
The above extract underscores the necessity of legal
practice. In our considered view, such a practice is highly
essential to be recruited to a judicial office. Daily
practice in the courts strengthens and develops not only the
innate qualities of intellect and character but also those
of patience, temper and resilience which are so important in
the practice of the law. A period of training prior to
ascending the Bench will help to repair some of the gaps
which may have been created by the demands of life at the
Bar.
12. It is stated in Samuel Warren’s Law Studies at page II
2 as under:
“Bar affords scope for the highest moral and
intellectual energies, while exposing
littleness and meanness to contempt inevitable
and unutterable. It has special temptations,
and exquisite trials; but also resplenden
t
rewards for the great and true-hearted, who,
resisting those temptations, and enduring
those trials, turning to neither the right
hand nor the left, nor poorly fainting by the
way, hold on to the end.”
As an advocate, a person has to present and expound law, as
such be fulfils an important social need, namely, the
upholding and preserving of society against onslaughts of
selfish tyrants, be they individuals, communities or the
State, Blackstone in his introduction to commentaries, has
spoken of law as
” a science which distinguishes the criterion
of right and wrong, which teaches to
establish the one and prevent, punish or
redress the other; which employs in its theory
the noblest faculties of the soul, and exerts
in its practice the cardinal virtues of the
heart, a science which is universal in its use
and extent, accommodated to each individual,
yet comprehending the whole community.”
It is no wonder, then, that lawyers through the ages in all
countries have enjoyed esteem and respect as pillars of
justice, as preservers of the weak and poor against
oppressors and tyrants, as upholders of the freedom and
liberty of human beings, as a sword for the guilty and a
shield for the innocent.
318
13. Therefore, we have no doubt in our mind that this
qualification of legal practice for a minimum three years is
a must for recruitment in the lowest rung of judicial
office.
14. The Kerala Judicial Service Rules, 1991 came into force
from 1-1-1992. Rule 5 of the said rules is as under :
“Appointment.- (1) Appointment to a category
specified in column (1) below shall be made by
the method of appointment specified against
that category in column (2) :
————————————————————
Category Method of appointment
————————————————————
(1) (2)
————————————————————
1 . Subordinate Judges/ Promotion from Category 2
Chief Judicial
Magistrates
2. Munsif-Magistrates Direct recruitment and
transfer in the manner sub-
rule
(3) of this Rule
———————————————————–
(2) Promotion to Category I shall be made
from a select list prepared by the High
Court from among the eligible officers on the
basis of merit and ability. Merit and
ability shall be assessed with reference to
the entries in the personal files relating to
the officers, penalties, if any, imposed on
them, their performance as Judicial Officers
and other relevant considerations. Seniority
shall be the criterion only if merit and
ability are found to be approximately equal.
Officers superseded shall be informed of their
supersession with reasons therefor. They
shall be considered for promotion against
after the expiry of six months.
(3) Out of every four vacancies arising in
category 2, the first, second and the third
shall be filled or reserved to be filled by
direct recruitment and the fourth by
recruitment by transfer from among the
following categories :
(i) Assistant Public Prosecutors Grade-1
Assistant Public Prosecutors Grade-II
(ii) Assistant Registrars,
Private Secretary to the Chief Justice and
other officers of the High Court in the same
scale of pay of Assistant Registrars, Personal
Assistant to the Chief Justice, Additional
Personal Assistant to the Chief Justice,
Section Officers,
Librarian,
Reference Librarian,
Court Officers,
Court Fee Examiners,
Accountant,
319
Head Translator and
Selection Grade Shorthand Writers in the High
Court of Kerala.
(iii) Under Secretaries,
Section Officers and
Librarian in the Advocate General’s Office.
(iv) Section Officers and Librarian in the
Law Department, Government Secretariat.
(v) Sheristadars of District Courts,
Additional District Courts, Special Courts, th
e
office of the Motor Accidents Claims
Tribunals, the office of the State Transport
Appellate Tribunal and sub-courts, Head Clerks
of the District Courts and Additional District
Courts and Selection Grade Confidential
Assistants in the Subordinate Civil Courts.
(vi) Sheristadars of Chief Judicial
Magistrate’s Courts and Selection Grade
Confidential Assistants in the Subordinate
Criminal Courts.
(vii) Full-time Lecturers of Government Law
Colleges.
(viii) Law Graduates working in the High
Court, Subordinate Courts, Advocate General’s
Office and Law Department in the Government
Secretariat, not covered by categories (i) to
(vii) not less than ten years of total service
in any one of the three offices or in the
three offices taken together, of which not
less than two years of service shall be after
the acquisition of the law qualification.
Explanation.- A person who is otherwise qualified for
appointment but is not holding any of the posts enumerated
in items (ii) to (viii) of this sub-rule at the time of his
application, shall be eligible for appointment, if he has
held any one or more of such posts at any time for the
prescribed number of years and is holding a post in a higher
scale of pay in any of the offices from which appointment
is to be made.”
15. Under sub-rule (3) of Rule 5 recruitment by transfer is
contemplated bearing the first category of officers
namely Assistant Public Prosecutor Grade-1 and Assistant
Public Prosecutor Grade-II. Those officers belonging to
Categories 11-VIII do not have minimum practice of three
years at the Bar. Whether Assistant Public Prosecutor
Grades-1 and II failing under Category 1 are eligible for
recruitment to the lower rung in judicial service, in that,
they have three years’ practice at Bar, need not be decided
in this review petition. That question is left over.
16. In All India Judges’ Assn.2 (review) this Court has
clearly laid down the principle of minimum practice of three
years. If the rules prescribe for a longer standing in the
Bar that does not, in any way, run counter to our judgment.
It is open to the State of Kerala to prescribe a higher
qualification as five years’ standing at the Bar. In the
instant case, the rule prescribing five years’ standing
reads as follows
320
” 10. (1) No Advocate shall be eligible for
appointment to category 2 unless he is having
practice at the Bar for a period of not less
than five years and has not completed 35 years
of age on the first day of January of the year
in which applications for appointment are
invited.” (Rest omitted as unnecessary)
It is hereby clarified this requirement of three years’
minimum practice must be held to have come into force from
24-8-1993.
17. Subject to the above observations IA Nos. 14-16 of 1994
are dismissed.
