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Rajasthan High Court
Ganesh Shankar vs Rajasthan High Court on 9 October, 2000
Equivalent citations: 2001 (1) WLC 119, 2001 (1) WLN 171
Author: Balia
Bench: . A ., R Balia


ORDER

Balia, J.

1. In this appeal, a valiant effort has been made by the learned counsel for the petitioner-appellant for persuading us to refer the issue about the validity of the Rule 15(2) of the Rajasthan Higher Judicial Service Rules, 1969 (for short, ‘the Rules of 1969’) read with definition of the Court under Rule 3(d) of the Rules.

(2). The question had arisen because of the eligibility criterion prescribed for direct recruitment under the Rajasthan Higher Judicial Service in the Advertisement dated 28.10.99 to the extent it prescribes the following eligibility criterion:

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(3). Translated into English, it means an Advocate who has practised in Rajasthan High Court or any courts subordinate thereto for a minimum period of 7 years is eligible for recruitment. The rule prescribing eligibility under the Rules of 1969 for recruitment to the Rajasthan Higher Judicial Service reads as under:-

Rule 15 – Qualifications:

A candidate for direct recruitment

(1) Must be citizen of India, and

(2) Must be an advocate who has practiced in the Court or Courts subordinate thereto for a period of not less than seven years.

(4). The expression ‘the Court’ has been defined in Rule 3 (b) of the Rules of 1969 to mean ‘the High Court of Judicature for Rajaslhan.’

(5). The petitioner-appellant is enrolled as an Advocate with the Bar Council of Uttar Pradesh w.e.f. 16.12.85 and he is practising in Rajasthan since 1st May, 1995. He is a citizen of India. He fulfils the condition No. 1 of Rule 15 but he does not fulfil the condition No 2 given in the advertisement namely that he is not practising in Rajasthan High Court or subordinate courts thereto for atleast minimum 7 years. On the aforesaid premise, two fold contentions have been raised by the learned counsel for the appellant. Firstly, that the advertisement is not in consonance with the rules inasmuch as Rule 15 does not restrict the place of practice for minimum period of 7 years to be in the High Court of Rajasthan or any courts subordinate thereto. The expression ‘the Court’ in Rules 15(1) cannot be confined to Rajasthan High Court. Secondly, it has been contended by learned counsel that if the qualification stated in the advertisement is in consonance with the Rules, rule itself is bad being violative of Article 14 inasmuch as there is no reasonable nexus in excluding the experience acquired at any High Court or courts outside the State of Rajasthan for the purposes of considering the petitioner-appellant for recruitment to the Rajasthan Higher Judicial Service. He strongly places reliance on the Supreme Court decision rendered in Pandurangarao vs. Andhra Pradesh Public Service Commission (1). It is contended by the learned counsel that similar rule framed for recruitment to the Andhra Pradesh Higher Judicial Service was struck down by the Supreme Court in Pandurangarao vs. Andhra Pradesh Public Service Commission (supra) being violative of Article 14 of the Constitution of India by holding that expression ‘the High Court’ in the rules meant the High Court of Andhra Pradesh only, and because in the opinion of the Supreme Court there does not appear to be any rationable for differentiating the advocates belonging to the Andhra Pradesh High Court from the rest as the impugned rule purports to do.

(6). The formidable difficulty in the path of the petitioner- appellant is that Rule 15(1) of the Rules of 1969 on those very grounds has been subjected to judicial review time and again. A Division Bench of this Court in Daulat Raj Singhvi vs. State of Rajasthan and anr. (2) and a Full Bench of this Court in Muni Lal Garg vs. State of Rajasthan (3) had upheld the validity of the Rules and the construction of the rule requiring 7 years of experience of practicing in Rajasthan whether at the High Court or at any court subordinate to the Rajasthan High Court in the different aspect of the rule. On raising a doubt about the correctness of the two judgments, a Division Bench of this Court in three Writ Petition Nos. 1704/88, 1010/88 and 2179/98 referred the question to be decided by a larger Bench and a five Judges Bench of this Court again considered the issue in G.R. Moolchandani & Ors. vs. High Court of Judicature for Rajasthan (4). The Full Bench, by a majority judgment, reaffirmed the view expressed
by this Court in the aforesaid two decisions of earlier Division Bench and Full Bench, in all the three judgments the decision of Supreme Court in Pandurangarao’s case has been considered.

(7). The learned counsel attempted to persuade us that inspite of the consistent view taken by this Court about the validity of the aforesaid rule and its construction after taking into consideration Pandurangarao’s case, we should again re-open the issue. We are of the opinion that this liberty cannot be granted to the petitioner-appellant. We remind ourselves of the caution sounded by the Supreme Court in Ambika Prasad vs. State of U.P. (5) that every new discovery of argumentative novelty cannot undo or compel reconsideration of a binding precedent for the reason that the statutory provisions cannot be kept in constant uncertainty by judicial review otherwise it would paralyse, by perineal suspension, the legislative and administrative actions or vital issue “deterred” by the brooding threat of forensic blow-up; and would be a kind of judicial destablisation of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, on the basic direction of the nation itself is in peril of a shake-up”.

(8). It was stated by the apex Court in Somawanti vs. State of Punjab (6) that:

‘The binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided.’

(9). The aforesaid caution has been reiterated by the Supreme Court in Mahesh Kumar Sahariya vs. State of Nagaland and Ors. (7). In the like circumstances as in the present case, the learned counsel for the appellant has urged before the Supreme Court that notwithstanding point at issue was covered by decision of a Constitution Bench of Supreme Court in Ishwari Khetan Sugar Mills Ltd. vs. State of U.P. (8), has argued, for reconsidering the issue because the earlier decision had not laid down the law correctly. The Court rejected the contention after noticing the decision in Somawanti’s case (supra), stating that a issue does not require reconsideration when the earlier decisions have been followed by the Court consistently and its binding effect cannot be disturbed merely on the ground that any particular aspect has not been considered therein.

(10). We are, therefore, of the opinion that learned Single Judge was right in not entertaining the petition at the threshold in view of three binding precedents staring in the face of the petitioner-appellant.

(11). Even on merit, we are in full agreement with the view expressed in the aforesaid three judgments on the issue.

(12). There is no doubt that the expression who has practised in ‘the Court’ used in Rule 15 read with definition of ‘the Court’ given in the Rules can have no other meaning than that ‘the Court’ refers to High Court of Rajasthan and consequently the expression “Courts subordinate thereto” also can have reference only to the Courts which are subordinate to Rajaslhan High Court. Learned counsel also does not question that this part of the interpretation is in consonance with the interpretation given to the expression “the Court” read with definition as was existing under the Andhra Pradesh Rule in Pandurangarao’s case.

(13). However, in furthering his contention, the petitioner- appellant misses the vital difference between the Rules of 1969 and the Andhra Pradesh rule. Under the Andhra Pradesh Rules requirement of practice in the High Court of Andhra Pradesh or courts subordinate thereto was not at all envisaged. In fact the A.P. Rules laid a cumulative test of eligibility viz. (I) he should be an advocate practising at the High Court and that (2) he should have the experience of practising in any civil or criminal Court in India for a period of three years. The Rajaslhan Rules require experience of 7
years practice in Rajasthan only, whether at High Court or at subordinate Court and this is in alternate.

(14). It was noticed by their Lordship of the Supreme Court in the Panduran-garao’s case that the requirement of practice of 3 years was not necessarily to be in the courts within the Andhra Pradesh so as to establish a rational nexus with the object of the rule to have the requisite knowledge of local laws as well as knowledge of the regional language and adequate experience at the Bar in respect of these matters, which could have furnished a rational ground for prescribing qualification for recruitment to the Higher Judicial Service for administration of justice within the State. The Constitution Bench made it clear more than once in its judgment this aspect of the matter. Firstly, in Para 8, the Court stated the object of the rule as under:-

“The object of the rule is to recruit suitable and proper persons to the Judicial Service in the State of Andhra with a view to secure fair and efficient administration of justice, and so, there can be no doubt that it would be perfectly competent to the authority concerned to prescribe qualifications for eligibility for appointment to the said Service. Knowledge of local laws as well as knowledge of the regional language and adequate experience at the bar may be prescribed as qualifications which the applicants must satisfy before they apply for the post. In that connection, practice in subordinate Courts or in the High Court may also be a relevant test to prescribe.”

(15). With reference to the aforesaid object of the Rules, noticing that apart from being an Advocate of the High Court requirement was not of practising in the courts within the State of Andhra Pradesh but it was broad basis of practicing in Courts in India, the Court said:

“In this connection, it may be permissible to point out that the second condition in regard to three years’ actual practice might more appropriately have required that the said three years’ practice should be in the Civil or Criminal Courts subordinate to the jurisdiction of the Andhra High Court. That would have more effectively secured the object of requiring the applicants to have knowledge of local laws and to have experience in the matter of the administration of the said laws. As it happens, the said condition under the relevant rule enables advocates practising in Civil or Criminal Courts all over India to apply, and so, the requirement about the knowledge of local laws cannot invariably be satisfied by the said condition. But as we have just pointed out, the said test cannot be said to be satisfied by the impugned rule as well.”

(16). Thus, it makes abundantly clear that while a combination of requirement of an Advocate of High Court with requisite experience of practising anywhere in India would not have served the object of the rule, the Court made it clear that the said object would have been fulfilled by prescribing the requisite experience of practising at the courts within the Stale of Andhra Pradesh, which would have made the Rule valid.

(17). It is in this aspect, the rules of 1969 vitally differs from the rules of Andhra Pradesh State as noticed by the three decisions referred to above. The Rules had fulfilled the object of ensuring that only such advocates who have acquired knowledge of the local laws and its administration in the Stale of Rajasthan through its courts, are made eligible to render efficient service in the field of administration of justice.

(18). Thus, even on the reading of the Pandurangarao’s case, no invalidity can be found in the impugned rules. Rather it sustains the validity of Rules.

(19). We, therefore, find no merit in this appeal and the same is hereby dismissed
in limine.


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