1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.3060 of 2008
Pravin son of Moharao Unhale,
aged about 29 years,
occupation - Lawyer,
resident of Lahan Wadgaon,
Arni Road, behind Shivam
Electricals,
Yavatmal-445 001. .... Petitioner.
Versus
1. State of Maharashtra,
through its Secretary,
Department of Law & Judiciary,
Mantralaya,
Mumbai-32.
2. The Chairman,
Maharashtra Public Service
Commission, Bank of India
Building, third floor,
M.G. Road, Hutatma Chowk,
Fort, Mumbai-1. ..... Respondents.
*****
Mr. N.M. Agnihotri, Adv., for the petitioner.
Mrs. B.H. Dangre, Addl. Govt. Pleader for respondents.
*****
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CORAM : B.H.MARLAPALLE AND
A.H.JOSHI, JJ.
Reserved on : 20th November,2008.
Pronounced on : 3rd December,2008.
J U D G M E N T [Per B.H. Marlapalle, J]:
1. Rule. Rule is made returnable forthwith, and
is heard by consent.
2. The Petitioner has passed his LL.B.
Examination held in April-May, 2004 from the Amravati
University, the result whereof was declared on 3rd
July, 2004. The petitioner passed the said Final Year
LL.B. Examination with 57.3 per cent marks.
3. On 4th July, 2007, the respondent No.2 – the
Maharashtra Public Service Commission [“MPSC” for
short] had published a proclamation inviting
applications for the posts of Civil Judges [Junior
Division] & Judicial Magistrates First Class [“Junior
Civil Judge”, for short], and the applications were to
be received by 3rd August, 2007. Another proclamation
was published by the MPSC on 3rd August, 2007, for the
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additional posts of 175, thus, increasing the total
posts to 325 and the last date to receive the
applications was extended from 3rd August, 2007 to 10th
August, 2007. The eligible candidates to apply for the
said posts were divided in six different categories,
namely A, B, C, D, E and F, and we are concerned with
the eligibility qualifications laid down in A and
categories, which read as follows:-
“A] ig For Advocate, Attorney or Pleader :
Qualification :
Candidate should have practised as
an Advocate, Attorney or Pleader in the
High Court or Courts subordinate thereto
for not less than three years on 3rd
August, 2007.
Note: In the case of Public Prosecutors,
their service in that capacity will
be taken as practice at the Bar.
"B] For fresh Law Graduates :
Qualification :
The candidates who have obtained
the degree of law with not less than 55
per cent marks at the final year of LL.B.
Examination in the first attempt within
three years on 03rd August, 2007 and who
is qualified for enrollment as an
Advocate.”
4. Petitioner states that after the result of his
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LL.B. Final Year Examination was declared on 3rd July,
2004, he received the provisional degree Certificate
dated 12th July, 2004, and applied to the Bar Council
of Maharashtra and Goa for enrollment as an Advocate on
5th August, 2004, and he came to be enrolled as an
Advocate on 23rd August, 2004.
5. In response to the Proclamation dated 3rd July,
2007, the petitioner applied to the post of Junior
Civil Judge by filling up the prescribed form on 31st
July, 2007, and the said application was from the
Category “B”, namely the “Fresh Law Graduates.” He
appeared for the Written Examination on 22nd September,
2007, and as he was declared successful in the said
examination, he was called for an oral interview which
was held on 29th March, 2008 at Nagpur. He attended
the said interview without any objection by the MPSC.
6. On 6th May, 2008, the MPSC published the
Recommendation List of 155 candidates and the name of
the petitioner was shown amongst the candidates whose
results were withheld for administrative reasons.
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7. On 16th June, 2008, a Show-cause-Notice was
issued to the petitioner with a charge of furnishing
incorrect information regarding his eligibility. He
was, therefore, called upon to submit his explanation;
failing which action as per Clause 5.4 of the
prospectus would be initiated.
8. On 3rd July, 2008, the petitioner submitted his
he had
detailed reply to the Show-cause-Notice and pointed out
that applied in the category of “Fresh Law
Graduates”, and as per Clause 35 contained in the
Application Form submitted by him, he had furnished the
following information:-
“35.1 For Advocate, Attorney or Pleader :
35.1.1 Registration No. : 3434/04
35.1.2 Date of Registration : 23-8-04
35.2 : For fresh Law Graduates :
35.2.1 : Date of Degree : 12-7-04.
35.2.2 : Percentage of marks at the
Final Year Examination : 57.3%”
9. Despite the reply submitted to the Show-cause-
Notice, the petitioner’s result was not declared by the
MPSC and, therefore, he has filed the instant petition
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under Article 226 of the Constitution and prayed for
the following reliefs:-
“a] Issue a Writ of Mandamus or an
order in the like nature to read
down the eligibility criteria as a
candidate who had secured 55 per
cent in Final LL.B. Examination in
Session 2006-07 instead of 10th
August, 2008, and
[b] direction to the respondents to
declare the petitioner’s result for
the competitive examination 2007
for the post of Junior Civil Judge,
[c]
and
quash and set aside the Show-cause-
Notice dated 16th June, 2008.”
10. It is the case of the petitioner that on 10th
August, 2007, he had not completed his practice of
three years as an Advocate and, therefore, he had
applied under Category ‘B’ for “fresh Law Graduates”
for selection to the post of Junior Civil Judge.
However, by the impugned Show-cause-Notice, the
Commission has held that the petitioner was not
eligible to apply either in Category ‘A’ for “Advocate,
Attorney or Pleader” or in Category ‘B’ for “Fresh Law
Graduates” and despite the same, he had submitted his
application for selection to the post of Junior Civil
Judge, for which he was not eligible to apply and,
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therefore, he was required to submit an explanation as
to why he should not be declared ineligible for the
said post.
11. As pr the petitioner, he is eligible under
Category ‘B’ – “Fresh Law Graduates”, and at no point
of time, he claimed to have applied in Category ‘A’ for
“Advocate, Attorney or Pleader.” He further states
that with reference to the last date to receive the
applications, as per the Corrigendum published on 4th
August, 2007, the last date to receive the applications
was extended to 10th August, 2007 and with reference to
the said date, he had not completed three years’
practice as an Advocate and, therefore, he was eligible
in Category ‘B’ for “fresh Law Graduates.” In the
alternative, it was submitted by the learned counsel
for the petitioner that the eligibility criteria with
reference to 10th August, 2007 and as set out in the
Proclamation/Corrigendum published by the MPSC must be
read down to hold that the applicant, who had passed
his Final Year LL.B. Examination in the Academic Year
2003-04, be treated as eligible, rather than examining
whether he had passed his law examination within three
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years with reference to 3rd August, 2007 or 10th August,
2007, and if so read, he has to be treated as a Fresh
Law Graduate and eligible to apply for the post of
Junior Civil Judge. On these grounds, the petitioner
prays for a direction to the MPSC to withdraw the Show-
cause-Notice and declare his result. The learned
Counsel for the petitioner has relied upon the law laid
down by the Supreme Court in the case of Sanjay Dhar
8 SCC 182].
Vs. J & K Public Service Commission & another [(2000)
12. The respondent – MPSC has filed an Affidavit-
in-Reply by its Desk Officer, and it has stated that
the Corrigendum was published on 25th July, 2007 and
the last date to receive the applications for the post
of Junior Civil Judge was extended to 10th August, 2007
and the number of posts was increased from 150 to 325
and, therefore, the candidates were required to possess
the educational qualification and experience with
reference to 10th August, 2007. In short, it is
contended that as on 10th August, 2007, the petitioner
ought to have completed three years or more of his
practice as an Advocate, or in the alternative, to
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treat him as a Fresh Law Graduate, his result of final
year LL.B. Examination ought to have been declared
within three years with reference to 10th August, 2007,
so as to hold him eligible either in Category ‘A’ or
in Category ‘B’. As per the MPSC, the petitioner does
not fit into either of these two categories and,
therefore, he was not an eligible candidate for the
post of Junior Civil Judge as on 10th August, 2007 and
question of
consequently, he has to be declared as such and the
declaration of his result of the
Competitive Examination, 2007, does not arise.
13. The moot question, that falls for our
consideration is, therefore, whether the petitioner was
eligible to apply in Category ‘B’ – “Fresh Law
Graduates as on 10th August, 2007” for the post of
Junior Civil Judge?
14. Before we proceed further, let it be noted
that the petitioner has scored 140 marks in the
selection as against 118 marks scored by the last
candidate as shown in the Recommendation List of 150
candidates who have been selected for the post of
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Junior Civil Judge and, therefore, if the petitioner
succeeds before us, he would stand at Serial No. 91A in
the said list, as per the result provided to us by the
learned Additional Govt. Pleader in a sealed cover.
15. The impugned selection for the post of Junior
Civil Judge has proceeded as per the Bombay Judicial
Service Recruitment Rules, 1956, and as amended by the
2003. The
Bombay Judicial Service Recruitment [Amendment] Rules,
Bombay Judicial Service Recruitment Rules
[for short the “Bombay Rules”] have now been replaced
by the Maharashtra Judicial Service Rules, 2008 [“The
Maharashtra Rules” for short], and the said Rules have
been published in the Notification dated 25th August,
2008 and gazetted on 27th August, 2008 and, therefore,
all the future selections for the said post shall be as
per the Maharashtra Rules.
16. By the notification dated 10th December, 2001,
Clause (iii-A) to Rule 4 (4) came to be substituted,
and subsequently by the notification dated 25th July,
2003, Clause [f] was added to Rule 4 [4] (iii-A) of the
Bombay Rules, and the same reads as follows:-
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“(f) Notwithstanding anything contained
in preceding provisions, for appointmentto the post of Civil Judge (Junior
Division) and Judicial Magistrate First
Class to be made by nomination, the freshLaw graduates shall also be eligible :
Provided that the candidate is not
less than twenty one years and not morethan thirty five years (forty years in the
case of candidate belonging to communities
recognized as Backward by the Government
for the purposes of recruitment).
Explanation.- The expression fresh Law
graduate means a candidate who has securedfifty five per cent marks at final year
LL.B. Examination in the first attempt
within three years of the last date
prescribed for submission of applicationand who is eligible to be enrolled as an
Advocate whether enrolled as such or not.”
[Emphasis supplied].”
17. Whether the petitioner satisfied the
definition of “Fresh Law Graduate” as set out in the
Explanation below Rule [4] (4) (iii-A) (f) of the
Bombay Rules is the question which requires to be
decided, and as per the petitioner, he so falls if the
term “within three years of the last date prescribed
for submission of application” is read down and
replaced as “within three years with reference to the
year in which the proclamation was issued for inviting
applications.” The petitioner states that if he has
passed the examination held in the Academic Year 2003-
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04, he would be eligible for any selection that is
undertaken in the year 2007, as he would be a candidate
who has passed the Final Year LL.B. Examination within
three years with reference to the year 2007. He
further claims that even if the date of reference for
deciding the period of three years is treated as 10th
August, 2007, he was enrolled with effect from 23rd
August, 2004 by the Bar Council of Maharashtra & Goa,
and in any case, as on 10th August, 2007, he had not
completed his practice as an Advocate for three years
and, therefore, he ought to be held as a “Fresh Law
Graduate.”
18. The Maharashtra Rules, so far as Category ‘B’
– “Fresh Law Graduates” is concerned, provide a
different provision regarding the eligibility. Rule 5
(3) (b) reads as under:-
“(b) Experience .- Must have practised
as an Advocate in the High Court or
Courts subordinate thereto for notless than three years on the date
of publication of advertisement; orMust be a fresh Law Graduate who,-
(i) has secured the degree in law
by passing all the examinations
leading to the degree in the first
attempt;
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(ii) has secured in the final year
examination of the degree in Law orin the case of candidates holding
Master’s Degree in Law in final
year exam, not less than fifty fivepercent marks; …..”
In the above stated Rule of the Maharashtra
Rules, the explanation or definition of the term “Fresh
Law Graduate” has not been specified as to mean the one
who has passed his law degree within three years on the
last
and,
date
therefore,
prescribed
the
for submission
controversy, as
of
raised
applications
in this
petition based on the Bombay Rules, is, hopefully, not
likely to arise in future in the selections for the
post of Junior Civil Judge.
19. In the instant case, admittedly, the
petitioner has passed his LL.B. Final Year Examination
in the first attempt and he has scored 57.3 per cent
marks in the said examination. The results were
declared on 3rd July, 2004 and the last date to receive
the applications was 10th August, 2007. The term
“within three years of the last date prescribed for
submission of applications” is required to be
interpreted appropriately in the light of the object
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leading to introduction of amended rule. Effect of
improper reading of said rule which results in
defeating the purpose and object underlying amendment
of rule is also required to be visualised.
20. It was quite possible that the petitioner’s
result could have eventually been declared either on
4th August, 2004, or on or after 10th August, 2004, he
could be called as “a Fresh Law Graduate.” Therefore,
according to the petitioner, the period of three years
should be counted with reference to the date of his
enrollment, namely 23rd August, 2004, and if so counted
with reference to 10th August, 2007, he is a Fresh Law
Graduate, as he did not complete three years of
practice as an Advocate as on 10th August, 2007.
Whereas the Commission has relied upon the Instructions
below Clause 3.2 of the proclamations dated 4th July,
2007 as well as 3rd August, 2007, and the Clause 1) of
the said Instructions reads as under:-
“1) The academic qualifications &
experience acquired upto the last date
prescribed for receipt of applications
will only be taken into account in
determining the eligibility of candidates
for the posts and for further selection.
Academic qualifications shall be deemed
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which the result to the relevant
examination has been declared by theCompetent Authority.” [Emphasis supplied
by us].
21. From the above Instruction, it appears that
the academic qualifications have to be considered with
reference to the date of publication of the result of
the Final Year LL.B. Examination for the purpose of
deciding whether the petitioner had passed his Final
Year LL.B. Examination within three years of the last
date prescribed for submission of applications. Based
on these instructions, it is the case of the MPSC that
the petitioner’s result having been published on 4th
July, 2004 and the last date to receive the
applications being 10th August, 2007, or 3rd August,
2007, he cannot be held to have passed his LL.B.
Examination within three years of either 3rd August,
2007 or 10th August, 2007. On this sole ground, the
MPSC has held that the petitioner is ineligible as he
cannot be called as “a Fresh Law Graduate” as defined
in the Bombay Rules.
22. It was also submitted before us by the learned
Counsel for the Petitioner that the Instructions quoted
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above must be given a purposive interpretation, rather
than going by the literal meaning of the said
Instructions. The learned Counsel submitted that
Clause ‘A’ for “Advocates, Attorneys and Pleaders” and
Clause ‘B’ for “Fresh Advocates” must be read in
exclusion of each other, in as much as, if any
candidate, who appeared for the law examination held in
April-May, 2004, and if his result was declared
subsequently
treated as a
either
“Fresh
in
Law
June/July,
Graduate”
he
if
oughthe has
to benot
completed a period of three years of practice as an
Advocate on the last date fixed to receive the
applications, and if any candidate so passing the LL.B.
Examination has completed three years of practice as an
Advocate, he cannot be called as “a fresh Law
Graduate.” It was further contended that taking into
consideration the date on which the result of the
relevant examination is declared, counting the period
of three years is too technical and it does not serve
the main purpose of providing an opportunity to the
fresh law graduate for competing for the post of Junior
Civil Judge and the purpose for which such a provision
has been introduced in the Shetty Commission
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Recommendations and approved by the Supreme Court by
its Judicial Order, is totally defeated.
23. In the case of Sanjay Dhar [supra], the
Supreme Court dealt with the interpretation of Rule 9
of the J & K Civil Service (Judicial) Recruitment Rules
“for purposive construction.” One of the eligibility
conditions as laid down by Rule 9 in Sanjay Dhar’s case
was that a candidate for recruitment to the service
must have put in at least two years’ practice at Bar by
the date on which he submits his application for such
recruitment, and must produce a Certificate to that
effect from the District Judge within the local limits
of whose jurisdiction, he works at the Bar. Mr. Sanjay
Dhar obtained the Certificate from the Registrar of the
High Court of Delhi, as he was practising in the said
High Court from October, 1990 onwards, though he was
enrolled as an Advocate on 29th January, 1990. This
Certificate was held to be invalid, as it was not
issued by the District Judge. Subsequently, the said
Certificate was also endorsed by the District &
Sessions Judge, Delhi on 17th March, 1993. Despite
this, the Public Service Commission rejected his
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application. The Supreme Court held that certification
by the Registrar, High Court of Delhi, and further
endorsement by the District & Sessions Judge, Delhi,
fulfilled the requirement of Rule 9 in its spirit, and
it could not be held that the certificate originally
issued by the Registrar, High Court of Delhi, could not
meet the requirements of Rule 9.
24.
The main issue, which was considered by the
Supreme Court, was whether the certificate of practice
furnished by Mr. Sanjay Dhar satisfied the requirement
of Rule 9, and if so, whether Mr. Sanjay Dhar was
wrongfully denied the appointment in 1992-93
examination, and the said questions were answered in
the affirmative. In Para 14 of the said decision, the
Supreme Court stated as under:-
“14. Rule 9 of the J & K Civil Service
[Judicial] Recruitment Rules, 1967 must
receive a purposive interpretation.
Purposive interpretation enables
ascertaining the purpose of enactment,the object sought to be achieved and the
mischief sought to be taken care of or
prevented. The object of the Rule is to
exclude lawyers not in actual practice,
and hence inexperienced, from entering
judicial service. At the same time the
Rule cannot be so construed as to create
an anomalous situation by asking the
District Judge to certify the period of::: Downloaded on – 09/06/2013 14:06:59 :::
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practice of a lawyer practising in High
Court and not in the District Courts,“based on his personal knowledge or
official records of the District Courts”
– as J & K PSC wanted the appellant to
do. A literal compliance, if insisted
on, may defeat the object to be achieved
by the Rule itself. If an advocate is
practising exclusively in the High Court,the District Judge would not have any
material available in his records to
verify the factum and the period of
actual practice of any applicant. The
Registrar of the High Court would be thebest-suited person to issue a certificate
in that regard and since Rulecontemplates the requisite certificate
being issued by the District Judge, the
underlying object sought to be achieved
by the Rule would be fulfilled if theCertificate issued by the Registrar is
countersigned by the District Judge or
the District Judge issues a Certificate
of his own based on the certificate
issued by the Registrar. …..”
25. Relying upon the above stated decision in the
case of Sanjay Dhar [supra], it was submitted before us
that considering the date of result of the examination
as the starting point to count the period of three
years to decide the eligibility of fresh law graduates
in isolation would defeat the purpose of providing an
opportunity to such law graduates who otherwise do not
complete the minimum three years’ practice as an
Advocate on the last date prescribed for submission of
applications. It was pointed out that even if all the
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students appear for the same examination, it may happen
that the results may be declared on different dates,
if, for some reason, some candidates’ results are
withheld and declared subsequently. It can also happen
that results of Summer or Winter Session of
examinations of different Universities may vary and
result in respect to any candidates also can-may be
delayed. Exact date of declaration of result would be
a point which would take a back seat while construing
the eligibility clause of permitting candidates having
less than 3 years’ tenure either of practice or no
practice, but having eligibility for enrollment.
26. If the result was declared on 4th July, 2004,
as has happened in the case of the petitioner, it is
possible that another candidate, who appeared for the
examination along with the petitioner, and in the
eventuality of his result being declared on 11th
August, 2004, would be held eligible, whereas the
petitioner would not be so held, despite the fact that
both had not completed three years of practice and,
thus, it will lead to inequality in law and, therefore,
denial of equal opportunity as has been guaranteed
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under Article 14 of the Constitution.
27. It was further submitted that in any case, the
petitioner has taken punctual steps to seek enrollment
by submitting his application to the Bar Council of
Maharashtra & Goa on 5th August, 2004 after he obtained
the Provisional Degree Certificate issued by the
University on 12th July, 2004, and he came to be
enrolled withig effect from 23rd August,
learned counsel for the petitioner submitted that the
2004. The
concept of “interpretation for purposive construction”
would be defeated in the instant case if the claim of
MPSC is accepted that the petitioner is neither
eligible in Category ‘A’ for Advocates, Attorneys or
Pleaders, nor in Category ‘B’ for fresh Law Graduates.
He would, thus, be excluded from both the categories,
which is not the purpose of providing the definition of
“Fresh Law Graduates”, though he withstands all other
tests applicable to the fresh law graduates’ category
prescribed in the Bombay Rules, urged the learned
Counsel for the petitioner.
28. On the other hand, as per the MPSC, in the
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proclamation issued by it, there was no ambiguity
leaving any scope for doubt or a different opinion
while deciding the eligibility for “Fresh Law
Graduates”. It was pointed out that the Instructions
very clearly said that the period of three years will
start commencing from the date of publication of the
result and it will be counted with reference to the
last date prescribed for submission of applications.
The MPSC
claims that the petitioner's
declared on 3rd July, 2004, and as on 3rd August, 2007
result was
or on 10th August, 2007, he could not be held to have
passed the LL.B. Examination within three years and,
therefore, ineligible to apply as a “Fresh Law
Graduate.” At the same time, he was enrolled with the
Bar Council of Maharashtra & Goa on 23rd August, 2004
and, thus, did not complete three years’ practice as on
10th August, 2007 and was, therefore, ineligible to
apply even in Category ‘A’ for Advocates, Attorneys and
Pleaders. On these grounds, the MPSC urges that its
decision to hold the petitioner ineligible to apply for
the post of Junior Civil Judge cannot be termed as
erroneous or perverse, and if that be so, it cannot
call for any interference in a Writ Petition under
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Article 226 of the Constitution.
29. In the case of All India Judges’ Association
[(1993) 4 SCC 288], the Supreme Court had observed that
in order to enter the judicial service, an applicant
must be an Advocate of at least three years’ standing.
Rule 4 (4) of the Bombay Rules came to be amended by
the Notification dated 10th December, 2001 in keeping
with this requirement of minimum three years’ standing
of an Advocate seeking to enter the judicial service.
On 21st March, 1996, the Govt. of India passed a
Resolution, pursuant to the directions issued by the
Supreme Court, to constitute the first National
Judicial Pay Commission under the chairmanship of Mr.
Justice K.J. Shetty, and the Commission submitted its
report on 11th November, 1999. The said report was
placed before the Supreme Court for approval, and the
Supreme Court in the case of All India Judges’
Association Vs. Union of India [ (2002) 4 SCC 247 ]
considered the said report, and with certain
modifications, accepted and approved it. In para 32, a
three-Judge Bench of the Apex Court stated as under:-
“32. …..With the passage of time,
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which is available is not attracted to
the judicial service. A bright young lawgraduate after 3 years of practice finds
the judicial service not attractive
enough. It has been recommended by theShetty Commission after taking into
consideration the views expressed before
it by various authorities, that the need
for an applicant to have been an advocatefor at least 3 years should be done away
with. After taking all the circumstances
into consideration, we accept this
recommendation of the Shetty Commission
and the argument of the learned amicuscuriae that it should be no longer
mandatory for an applicant desirous ofentering the judicial service to be an
advocate of at least three
standing. We, accordingly, in the light
years’of 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, to beeligible to compete and enter judicial
service. We, however, recommend that afresh recruit into the judicial service
should be imparted training of not less
than one year, preferably two years.”
30. It is clear that the Hon’ble Supreme Court was
not in favour of continuing with the earlier
requirement of at least three years’ standing for an
advocate to enter the judicial service, and it intended
to relax the said requirement. Hon’ble Supreme Court
accepted the recommendations of the Shetty Commission
that “it should be no longer mandatory” for an
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applicant desirous of entering the judicial service to
be an advocate of at least three years’ standing and
it, therefore, directed the High Courts and 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 to be eligible for competing and
entering the judicial service. It is obvious that the
Apex Court did not state that a fresh law graduate
means a graduate who has not practised as an Advocate,
and all that it intended to convey was a fresh law
graduate means an Advocate who does not have three
years of practice, for being eligible to compete and
enter the judicial service.
31. In keeping with this mandate, the Bombay Rules
came to be amended by the Notification dated 25th July,
2003 as noted herein above, and the Explanation below
Clause (f) of Rule 4 (4) (iii-A) of the said Rules
states that a fresh law graduate means a candidate who
has secured 55 per cent marks at Final Year LL.B.
Examination in the first attempt within three years of
the last date prescribed for submission of applications
and who is eligible to be enrolled as an Advocate,
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whether enrolled as such or not. This definition as
well as Instructions below Clause 3.2 of the
Proclamation/Advertisement dated 3rd August, 2007
released by the MPSC must be understood and read in the
spirit of the above observations made by the Apex
Court, so as to provide an opportunity to talented
advocates to enter judicial service, even though they
do not fulfill the requirement of minimum three years’
standing.
32. In our considered opinion, the Explanation and
the Instructions must be read down so as to be in
conformity with the intention to enable bright law
graduates, who did not have the minimum of three years’
standing and those who are eligible to be enrolled as
advocates, whether enrolled or not, to enter the
judicial service, and such talented law graduates
should not be prevented from entering the judicial
service by adopting a hyper-technical approach while
considering the requirements of eligibility in terms of
“Category ‘B’ for fresh law graduates”, as held by the
Supreme Court in the case of Sanjay Dhar [supra].
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33. While interpreting the provisions of the
Explanation below Rule 4 (4) (f) (iii-A) of the Bombay
Rules and the Instructions in the advertisement, we
must adopt the approach of ‘purposive interpretation’
which will enable the fresh law graduates who do not
have a minimum three years’ standing and have secured
more than 55 per cent marks in the Final Year LL.B.
Examination, to enter the judicial service. If the
petitioner has passed the final year LL.B. Examination
held at any time prior to April/May, 2004, say, for
example, the examination held in October/November,
2003, we would not have taken a similar view.
34. Writ Petition No. 4308 of 2007 filed by Ms.
Neena Bhatia came to be allowed by this Court on 21st
November, 2008, and we held that the said petitioner
had completed three years’ practice as on 10th August,
2007 and, therefore, was eligible to apply for the post
of Junior Civil Judge from the category of Advocates
with three years’ law practice, namely “Category ‘A’
for Advocates, Attorneys and Pleaders.” Ms. Bhatia had
also appeared for the Final Year LL.B. Examination held
in April-May, 2004, and the Rashtrasant Tukdoji Maharaj
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Nagpur University had declared her result on 7th June,
2004. She completed all the three years of law
examination with an average of 60.89 per cent marks,
and she had applied for enrollment with the Bar Council
of Maharashtra and Goa and came to be enrolled as an
advocate with effect from 30th July, 2004. The MPSC had
withheld her result on the grounds similar to that of
the present petitioner. The MPSC held that Ms. Bhatia
did not meet the requirements of minimum three years’
practice as an advocate with reference to 3rd August,
2007 or 10th August, 2007. We repelled this ground and
directed the Secretary of the MPSC to incorporate the
said petitioner’s name in the list of selected
candidates for the post of Junior Civil Judge,
forthwith, and intimate to the Registrar General of
this Court her name as a selected candidate for the
said appointment.
35. In the instant case, the petitioner also
appeared for the LL.B. Final Year Examination held in
April-May, 2004; but the Sant Gadgebaba Amravati
University had declared his result on 3rd July, 2004,
i.e., almost after three to four weeks the Nagpur
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University declared the Final Year LL.B. Examination
results and, therefore, despite the fact of obtaining
the provisional degree Certificate on 12th July, 2004,
the petitioner came to be enrolled with effect from
23rd August, 2004. Though the petitioner cannot be said
to have a minimum three years of practice as an
Advocate, at the same time, he cannot be excluded from
the “Category of Fresh Law Graduates”, if regards be
had to the above observations made by the Apex Court in
All India Judges’ Association case. We must adopt a
‘purposive interpretation’ of the definition of “Fresh
Law Graduates with less than three years’ practice”, so
as to enable bright law graduates to enter the judicial
service. As noted earlier, the petitioner has scored
140 out of 250 marks, and had his result been not
withheld, his name would have appeared at Serial No.
91A in the list of 155 selected candidates.
36. Even otherwise, in the instant case, the MPSC
did not take any objection regarding eligibility of the
petitioner while scrutinizing his application, and he
was allowed to appear for the Written Test as well as
the oral interview without any objection. It is only
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when the final selection list was published, his name
appeared in the candidates whose results were withheld,
and subsequently the impugned Show-cause-Notice
followed. As such we do not find any fault on the part
of the petitioner.
37. In the premises, we allow this petition and
hold that the petitioner was eligible to apply for the
post of
Junior Civil Judge in response
Proclamation/Advertisement published on 4th July, 2007
to the
by the MPSC, in the category of “Fresh Law Graduates”,
namely Category ‘B’, in keeping with the requirements
of Rule 4 (4) (f) (iii-A) of the Bombay Rules. We,
therefore, direct the MPSC to declare the petitioner’s
result for the Competitive Examination-2007 for the
post of Junior Civil Judge, and we hereby quash and set
aside the Show-cause-Notice dated 16th June, 2008
issued to the petitioner by the MPSC. We further
direct the Secretary/Deputy Secretary of the MPSC to
incorporate the name of the petitioner in the List of
Selected Candidates for the post of Junior Civil Judge,
forthwith, and intimate to the Registrar General of
this Court the name of the petitioner as a selected
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candidate for the said appointment, as expeditiously as
possible, and preferably before 20th December, 2008.
Rule is made absolute in the above terms, but
without any order as to costs. Writ to go to the MPSC
forthwith.
JUDGE ig JUDGE
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