Judgment :- COMMON ORDER: W.P.No.3642 of 1992: The petitioner is the Secretary of the Pondicherry Bar Association. He filed the above writ petition on behalf of the Bar Association, according to the petitioner, is devoted to act in furtherance of the interest of the Judiciary and the Rule of Law with a view to achieve justice to the litigant public, with following prayer: "To issue a writ in the nature of a certiorari or any other appropriate writ or order, calling the records relating to the Order No.59/SPA/92-LD, dated 27.2.1992 on the file of the respondent and G.O.Ms.No.31/84/LLD, dated 2.7.1984 on the file of the 4th respondent to quash the same and to pass such further or other order as this Court may deem fit proper." 2. The petitioner filed W.M.P.No. 19852 of 1992 to amend the prayer in the writ petition, which is as follows: "To issue a writ in the nature of a certiorari or any other appropriate writ or order, calling the records relating to the Order No.59/SPA/ 92/LD, dated 27.2.1992 on the file of the respondent and G.O.Ms.No.31/84/LLD, dated 2.7.1984 on the file of the 4th respondent to quash the same in so far as the 3rd respondent is concerned and to pass such further other order as this Court may deem fit to grant." 3. The short facts of the case are as follows: By order dated 27.2,1992 bearing No,59/SPA/92-L.D. the 3rd respondent (V.A.Edward Kumar), a junior time scale (Grade Officer of the Pondich-erry Judicial Service, was promoted with immediate effect to junior scale (Grade I) of that service and posted as Special Officer-cum-Subor-dinate (Second Additional), Judicial Department, Pondicherry. The 3rd respondent had appointed to the junior scale (Grade II) of the Pondicherry Judicial Service with effect 8-5-1984 along with four others viz., S.R.Pushpavalli, L.Veeranath Rao, G.Patric G.Rajasurya, who are respondents 2 to 5 in W.P.No.14035 of 1992. According to petitioner, the 3rd respondent came on transfer to the Law Department, Pondicherry thereafter he passed B.L.degree examination from the Pondicherry Law College, affiliated to the Madras University, by availing study leave, in or about 1975. Even passing the law degree examination, he continued in the service of the Law Department his appointment to junior scale (Grade II) of the Pondicherry Judicial Service by the Government Order dated 2.7.1984. 4. Even passing the law degree examination, he continued in the service of the Law Department his appointment to junior scale (Grade II) of the Pondicherry Judicial Service by the Government Order dated 2.7.1984. 4. The petitioner submits that the 3rd respondent neither practised law as an Advocate held a post which requires knowledge of law in its recruitment rules, for a period of years in substantive capacity prior to his consideration, selection and appointment Judicial Service as required under the Pondicherry Judicial Service Rules, 1980 (hereinafter referred to as the Rules). Even after the appointment of the 3rd respondent under the scale (Grade II), he had not acted a single day as a Judicial Officer since his appointment with effect from 8.5.1984. The junior scale (Grade II) judicial post is equivalent to the of a District Munsif. Junior scale (Grade I) post is equivalent to the post of a Subordinate Judge. To hold the post of a Subordinate Judge, which carries an unlimited pecuniary jurisdiction besides appellate powers on certain matters, the incumbent should have experience at least for five/six years actually discharging judicial functions sitting in a and disposing cases. The 3rd respondent cannot contend and justify his continuance officiating appointments on other duty in the Law Department stating that he was pot a post to discharge judicial functions. The 3rd respondent, as on this date, lacks experience, service requirement and practical knowledge for being promoted and appointed Subordinate Judge. The public in general and the litigant public in particular areentitted have their lis and disputes adjudicated upon by a qualified, experienced, fit knowledgeable Subordinate Judge since dispensation of justice in the Sub Courts are matters of considerable public and private consequence and importance. The 3rd respondent had undergone any training as a District Munsif besides that he had not discharged the functions of a District Munsif. 5. The procedure followed for selection and appointment of Judicial Officers to junior (Grade II) in Pondicherry is to call for applications by advertisement in newspapers eligible/qualified candidates. The qualified candidates/applicants are required to take written examination consisting of two papers. The candidates who had secured requisite marks for qualifying themselves to be called for an oral examination would be called upon appear for a viva-voce examination before the Selection Committee contemplated under Rule 10 of the Rules. The qualified candidates/applicants are required to take written examination consisting of two papers. The candidates who had secured requisite marks for qualifying themselves to be called for an oral examination would be called upon appear for a viva-voce examination before the Selection Committee contemplated under Rule 10 of the Rules. During the year 1983 just before the appointment of the respondent, there was an advertisement calling for applications from qualified and eligible candidates. Thereafter, there was a written examination consisting of two papers. Persons who secured qualifying marks were interviewed and examined orally by the Selection Committee. During the year 1983, by the abovesaid process only one person was selected and that was Rajasurya, 5th respondent in W.P.No.14035 of 1992. Therefore, to knowledge of the petitioner, the 3rd respondent was not selected during the year 1983 the process afore mentioned for being appointed during July, 1984 along with the Rajasurya. 6. Rule 12 of the Rules requires that the High Court shall, before making recommendation the Administrator, invite applications by advertisement and may require the applicants give such particulars as it may prescribe and may further hold such tests as may considered necessary. Rule 12 is uniformly applicable to all persons who are to be selected to the Pondicherry Judicial Service irrespective of the fact as to whether such person drawn either from the Bar or from the Service of the Union Territory, State or Centre. In circumstances, the petitioner submits, that in respect of the 3rd respondent atone a different procedure could not and cannot be for appointing him to junior scale (Grade II) of the Pondicherry Judicial Service. There no possibility of selecting the 3rd respondent separately without application, without examination and without personal interview and oral examination as had been respect of others particularly of those who applied during 1983. Any departure in the 3rd respondent shall only invalidate his appointment to junior scale (Grade II) Pondicherry Judicial Service. Thus, according to the petitioner, the appointment of respondent to junior scale (Grade II) and junior scale (Grade I) of the Pondicherry Service were clearly illegal, improper, contrary to the Rules and violative of Arts. 14 of the Constitution of India. 7. Thus, according to the petitioner, the appointment of respondent to junior scale (Grade II) and junior scale (Grade I) of the Pondicherry Service were clearly illegal, improper, contrary to the Rules and violative of Arts. 14 of the Constitution of India. 7. The State of Pondicherry being a Union Territory, governed by Art.239 of the Constitution of India and being administered by the President of India through the Lieutenant Governor Pondi-Cherry, fall within the purview of, in respect of service matters, the Union Public Service Commission. Art.234 of the Constitution of India contemplates consultation with the Public Service; Commission before appointment of, Judicial Officers other than District Judges. Even though Art.234 of the Constitution of India" refers to State, it shall in principle apply to Union Territory also. In so far as the appointment of the 3rd respondent to the Pondicherry Judicial Service, the same had not been made after consultation with the Union Public Service Commission and hence his appointment is violative of Art.234 of the Constitution of India and is liable to be set aside, both in respect of Grade II and Grade appointments. 8. The 3rd respondent prior to his appointment and subsequent to his appointment as aforesaid, continued to work in the executive post in the Law Department at all the 3rd respondent had been working in the Law Department, he should have been doing so only on deputation on lien service. The 3rd respondent had been working in the Law Department continuously since May, 1984, till his present promotion and appointment on 27.2.1992, i.e., for a continuous period of seven years and nine months. Therefore, the 3rd respondent cannot have any claim in the Pondicherry Judicial Service at this point time. 9. Art 50 of the Constitution of India enjoins upon the State the duty of separation judiciary from executive. The 3rd respondent was and is an executive. It would be constitutional duty failure on the part of respondents 1,2 and 4 to allow the appointment an executive to junior scale (Grade II) post in the Pondicherry Judicial Service by a process and procedure different from the one followed in the case of others selected to the said post and service. It would be constitutional duty failure on the part of respondents 1,2 and 4 to allow the appointment an executive to junior scale (Grade II) post in the Pondicherry Judicial Service by a process and procedure different from the one followed in the case of others selected to the said post and service. Nevertheless, his continuance in an executive post for an unlimited and continuous period, stretching about eight years, would amount to packing the judiciary with an executive so as to fit him later on in higher posts in the judiciary as and when it suits the executive. The 3rd respondent, who is nothing but an executive in his colour, complexion, experience, taste, attitude and service cannot be suddenly transplanted in a higher judicial post, viz., in the post of Subordinate Judge. Such an act and attempt shall clearly violative of Art.50 of the Constitution of India. Therefore, the posting of the 3rd respondent as a Subordinate Judge with no equipment whatever is nothing but an indirect invasion judiciary by an executive. Thus, the petitioner has prayed to quash the impugned orders dated 27.2.1992 and 2.7.1984 in so far as the 3rd respondent is concerned. 10. A common counter affidavit was filed on behalf of respondents 1, 2 and 4. The affidavit was sworn to by A.Chandrasekhara Menon, Secretary to Government, Law Department, Government of Pondicherry, who is conversant with the facts of the case, making the following averments. By virtue of Art.320 of the Constitution, all matters relating to methods of recruitment to the service and posts in connection with the affairs of the Union Territory fall under the purview of the Union Public Service Commission and the Union Public Service Commission shall be consulted on such matters. However, according to the Proviso to Clause 3 of Art.320 of the Constitution, the President has been empowered to, make regulations, specifying the matters in which either generally Or in any particular class of cases or any particular circumstances to exempt the necessity of consultation with the Union Public Service Commission. However, according to the Proviso to Clause 3 of Art.320 of the Constitution, the President has been empowered to, make regulations, specifying the matters in which either generally Or in any particular class of cases or any particular circumstances to exempt the necessity of consultation with the Union Public Service Commission. By virtue of Clause 3 of Art.320 of the Constitution, the President has made a regulation called the Union Public Service Commission (Exemption from Consultation) Regulations, 1958 According to paragraph 2 of the said Regulations, it shall not be necessary to consult the Commission in regard to any of the matters mentioned in sub-clauses (a) and (b) of 3 of An 320 of the Constitution in the case of service and posts specified in the Schedule the said regulations. Item No.9 of the Schedule to the abovesaid Regulations includes and criminal judicial posts in the Union Territory under the control of a High Court or of Judicial Commissioner other than those included in Item No.8. Item No.8 specifies posts of Judicial Commissioners, Additional Judicial Commissioners, District Judges, Judges, Additional District Judges and Additional Sessions Judges in Union Territory. 11. By virtue of Union public Service Commission (Exemption from Consultation) Regulations, 1958, recruitment and appointment to the judictal posts have been exempted from the consultation process with the Union Public Service Commission when the same be done with the High Court. 12. The Government of Pondichery considered the question of constituting a organised service for the judicial officers in the Union Territory of Pondichery. When Government of India was addressed for that purpose, the Government of India Notification No. 30/16/76-Jus-dated 31.8.1979, issued in exercise of the powers conferred by the proviso to Art 309 of the Constitution, directed that the Lieutenant Governor Pondicherry shall exercise the power to make rules in the case of judicial officers Union Territory of Pondicherry and posts in connection with the affairs of that Union in so far as such affairs relate to the administration of justice for regulating all or any following matters, namely, i. The method of recruitment to such service and posts; ii. The qualifications necessary for appointment to such service and posts; and conditions of service of persons appointed to such service and posts in so far conditions relate to probation, confirmation, seniority and promotion. The qualifications necessary for appointment to such service and posts; and conditions of service of persons appointed to such service and posts in so far conditions relate to probation, confirmation, seniority and promotion. The said Notification further provides that any recruitment rule including any rule relating probation, confirmation, seniority or promotion made by the Lieutenant Governor pursuance of this direction, shall be made in consultation with the Madras High Court. Therefore, the Government of Pondicherry, in consultation with the Madras High framed the rules called the Pondicherry Judicial Service Rules, 1980, and notified the in Law and Labour Department ’ s G.O.Ms.No.1/1980-LLd, dated 10.1.1980. These rules amended from time to time and all appointments to the Pondichery Judicial Service been made under the said Rules in consultation with the High Court, Madras. 13. The Rules provide in Part II for the constitution and strength of the service. Sub of Rule 3 provides that the service shall have a junior scale and senior scale. The junior has two grades, viz., time scale Grade II and senior Scale Grade I. According to Rule posts borne on the permanent strength of the service and the posts included therein as specified in the Schedule. The Schedule specifies the authorised permanent strength the service and the nature of the posts included in it. In the junior scale, the posts Divisional Judicial Magistrate, Judicial First Class Magistrate, District Munsif and the Munsif-cum-Sub Divisional Judicial Magistrate are included under time scale (Grade the posts of Chief Judicial Magistrate, Subordinate Judge and Special Officer are included the selection grade scale (Grade I). Further, according to the Schedule, the senior posts include Chief Judge and District and Sessions Judge. According to Rule appointments to service shall be made to the corresponding scale and grade of the and not against any specified post and a person appointed to the service shall be designated in accordance with the duties being discharged by him for the time being. 14. Part III of the said Rules provides for the method of recruitment. Rule 7 under this enables the Administrator to recruit personnel in the junior time scale (Grade II) and direct recruitment, if any, in the senior scale on the recommendations of the High Sub-rule (2) of Rule 7 enables the Administrator, on the recommendations of the High to make promotions from one scale to another and from one grade to another. Rule 7 under this enables the Administrator to recruit personnel in the junior time scale (Grade II) and direct recruitment, if any, in the senior scale on the recommendations of the High Sub-rule (2) of Rule 7 enables the Administrator, on the recommendations of the High to make promotions from one scale to another and from one grade to another. Rule provides for initial recruitment to the service. According to Rule 8, the High Court recommend to the Administrator suitable persons for appointment to the service amongst the Judicial Officers and Legal Advisers to Government in service in the Territory of Pondicherry at the time of the commencement of these Rules. Sub-rule(2) of Rule 8 provides that the High Court may discretion, examine the character rolls and hold such other tests as may be deemed fit 9 provides for recruitment after the initial recruitment and states that such recruitment be made by direct recruitment from the Bar and also from Service, provided they otherwise found eligible by the Selection Committee. Rule 10 provides for the constitution the Selection Committee including therein the Chief Justice or a Judge of the High deputed by him, Chief Secretary to Government, Pondicherry Administration, ‘ Secretary, Department, Pondicherry, and the Head of the Judicial Department, Pondicherry. 15. Rule 11 of the Rules prescribes the qualifications for direct recruits to the junior specifying, (i) citizenship of India; and (ii) practice as an advocate or qualification for enrolled as an advocate under the Advocates Act, 1961. Subsequently, by a Notification issued in G.O.Ms.No.70/ 83-LLD, dated 3.11.198?, the qualification for direct recruits junior scale in the service was amended as practice as an advocate and service in any under the Central or State Government or Union Territory Administration, requiring knowledge of law for a period of not less than three years. While the Rules as originally framed made even a fresher out of the Law College eligible for being considered appointment to the junior scale, the amendment required a practice of three years or years service in a post requiring knowledge of law under the Government for considered for appointment to the junior scale Grade II of the service. Consideration graduates working in executive posts for appointment to the judicial posts is a common feature in almost all State Judicial Service Rules including Tamil Nadu. Consideration graduates working in executive posts for appointment to the judicial posts is a common feature in almost all State Judicial Service Rules including Tamil Nadu. Rule 4 of the Nadu Rules provides for transfer of 9 out of 20 posts from the service to the cadre of Munsif. Rule 19 of the Rules enables the Administrator, in consultation with the High to fill up any vacancy in the service by making temporary appointment thereto. 16. The Government of Pondicherry after the framing of the Rules, took steps for constitution of the service under Rule 8. According to Rule 25, the initial recruitment made subject to the consent of the officer selected. Having regard to the fact that the appointment to the service shall be made from amongst the Judicial Officers and Advisers to the Government in service in the Union Territory of Pondicherry at the commencement of the Rules, consent letters were obtained from all Judicial Officers the Legal Advisers in the Law Department, viz., the Secretary to Government, Department, Deputy Secretary to Government, Law Department, Under Secretary Government, Law Department and the Officer on Special Duty, Law Department. getting the consent, the Selection Committee made selection of officers from among Judicial Officers and the Legal Advisers under Rule 8. 17. Thereafter, the High Court by its letter No. ROC. 2849/1981-Bl,dated 17.8.1982 communicated its recommendations for initial recruitment to the Pondicherry Judicial Service as on 17.12.1980. Thereafter, by a Notification issued in G.O.Ms.No.54/83-LLD, dated 25.7.1983, the Government appointed as many as 17 officers to the Judicial Service different scales and grades with effect from 17.12.1980. 18. Consequent on the retirement and migration of officers to other services, four substantive vacancies arose in the senior scale and junior scale of the service. After filling up of these vacancies to the extent permissible by promotion, four substantive vacancies arose in the junior scale (Grade II) of the service. Having regard to the fact that few of the officers who had expressed their willingness both from among the Judicial Officers and also from among the Legal Advisers of the Government could not be inducted service for want of vacancies, these officers were considered for appointment to the junior scale (Grade II) of the service. Having regard to the fact that few of the officers who had expressed their willingness both from among the Judicial Officers and also from among the Legal Advisers of the Government could not be inducted service for want of vacancies, these officers were considered for appointment to the junior scale (Grade II) of the service. For this purpose, the Selection Committee under Chairmanship of the then Chief Justice of the Madras High Court met on 7.1.1984 considered eight Judicial Officers and two Legal Advisers to the Government including 3rd respondent for appointment to the service. The Selection Committee considered candidates in the order of merit and found them eligible and fit for being recommended appointment to the service on regular basis against the then existing regular reserved unreserved vacancies and such vacancies that might arise in future The Selection Committee also recommended that until the officers are appointed on regular basis, they may be allowed to continue to hold the post on officiating basis against regular reserved vacancies and temporary vacancies. The High Court, Madras, by D.O.Letter No. 1329/84-D, dated 8.5.1984 made recommendations to the Government of Pondicherry accordingly. Thereafter, the Government of Pondicherry by Notification issued G.O.Ms.No.31/84-LLD, dated 2.7.1984 appointed the following officers to the junior (Grade II) of the service under sub-rule (1) of Rule 7 read with Rule 14, with effect 8.5.1984: 1. S.R.Pushpavalli 2. L.Veeranath Rao 3. G.Patric 4. G.Rajasuria 5. V.A.Edward Kumar. 19. It is further submitted that the 3rd respondent is a degree holder in law having the same from the University of Madras in the year 1975. He was appointed Superintendent in the Law Department, which is at present a Group ‘ B ’ Gazetted post effect from 20.3.1978. He was promoted as Officer on Special Duty in the rank of Under Secretary to Government in the Law Department on 7.3.1980 in the scale of pay which the same as that of the junior scale (Grade II) of the Pondicherry Judicial Service. In both the capacities as Superintendent and Officer on Special Duty in the Law Department, the respondent has been vested with duties involving giving of legal advice, processing litigations and prosecutions and legislative drafting. In both the capacities as Superintendent and Officer on Special Duty in the Law Department, the respondent has been vested with duties involving giving of legal advice, processing litigations and prosecutions and legislative drafting. His contribution to the legal functions the Law Department had been significant and the 3rd respondent associated and involved himself actively in the Conduct of cases in the trial court, High Court and even Supreme Court by preparation of pleadings and briefing of the counsel. The 3rd respondent was tendering legal advice on various issues on administrative, revenue and other branches law. He also performed the duties of a Legislative Draftsman. It is only in consideration his performance as a Legal Adviser in the Law Department, the Selection Committee considered him eligible to be appointed to the junior scale (Grade II) of the Pondicherry Judicial Service, and after going through his confidential character rolls, selected him merit to the service. As there was no vacancy immediately available in the Pondicherry Judicial Service in July, 1984, when the 3rd respondent was appointed, he could not posted to the service immediately. From 1.1.1985 to 31.12.1985, he had been deputed the Ministry of Law (Legislative Department) for training in legislative drafting and on return from the training, his service had to be utilised in the Law Department administrative reasons. The 3rd respondent was retained in the Law Department in public interest and when his turn for getting promotion to the next higher grade in the cadre occurred, he had been promoted and posted in a post included in the junior scale (Grade of the Pondicherry Judicial Service. 20. It is submitted that the 3rd respondent was appointed to the junior scale (Grade II) the Pondicherry Judicial Service as early as 8.5.1984 and this appointment was duly notified in G.O.Ms.No.31/84-LLD, dated 2.7.1984. The petitioner has not challenged the above appointment all these years. The impugned Order No.59/SPA/ 92-LD, dated 27.2.1992 only a sequel to the Notification issued on 2.7.1984 when the turn for promotion to the grade of the 3rd respondent occurred. Having allowed the order issued in G.O.Ms.No.31/84 LLD, dated 2.7.1984 to continue in force without challenge, the petitioner cannot be heard contend that the Order No.59/ SPA /92-LD, dated 27.2.1992 is liable to be quashed. petitioner is clearly guilty of laches and the writ petition is liable to be dismissed in limine this ground alone. 21. Having allowed the order issued in G.O.Ms.No.31/84 LLD, dated 2.7.1984 to continue in force without challenge, the petitioner cannot be heard contend that the Order No.59/ SPA /92-LD, dated 27.2.1992 is liable to be quashed. petitioner is clearly guilty of laches and the writ petition is liable to be dismissed in limine this ground alone. 21. The Rules specifically prescribe that for appointment to the junior scale (Grade II) of Pondicherry Judicial Service, a person should have either practised as an advocate or should have held any post under the Central or State Government or Union Territory Administration requiring knowledge of law. Inasmuch as the 3rd respondent has held the post requiring knowledge of law for more than three years and he was functioning as a Legal Adviser to Government, he had been considered and appointed by a duly constituted Selection Committee to the junior scale (Grade II) of the Pondicherry Judicial Service. Inasmuch the post of Subordinate Judge is only a selection grade post in the junior scale, the respondent was appointed to the grade when his turn came, on the recommendations of High Court. Thus, the appointment of the 3rd respondent and his promotion in Pondicherry Judicial Service have been done strictly in accordance with the Pondicherry Judicial Service Rules, 1980 framed under Art.309 of the Constitution India. The provisions of Sec.3 of the Pondicherry Civil Courts Act have been fully complied with. 22. The appointment of the 3rd respondent to the Pondicherry Judicial Service does not any way offend the provisions of Art.50 of the Constitution of India providing for separation of executive from judiciary or independence of judiciary. There is no specific years of service or experience required for promoting a junior scale (Grade II) officer to the selection viz. junior scale (Grade I). The 3rd respondent was retained in the Law Department after his appointment in the Pondicherry Judicial Service in public interest. The post Subordinate Judge is also a floor level post having original jurisdiction and has appellate powers only in some special enactments like Municipalities Act, Stamp Act, etc. allegation that the incumbent should have judicial experience at least for five or six actually discharging judicial functions for purposes of being promoted to junior scale (Grade I) is not supported by any rule and is not, therefore, maintainable. There is no provision the Pondicherry Judicial Service Rules to impart training to District Mun-sifs. allegation that the incumbent should have judicial experience at least for five or six actually discharging judicial functions for purposes of being promoted to junior scale (Grade I) is not supported by any rule and is not, therefore, maintainable. There is no provision the Pondicherry Judicial Service Rules to impart training to District Mun-sifs. 23. It is submitted that after the constitution of the Pondicherry Judicial Service, recruitments to the service were made without any written examination. When the respondent was considered and selected for the Pondicherry Judicial Service, it was selection made from among those who were already serving as Judicial Officers and Advisers to Government but who could not be inducted into service at the time of constitution for want of vacancies on the date on which the initial Constitution was made a matter of fact, after the Pondicherry Judicial Service was constituted, all the selections were made only on the basis of oral interview and no written examinations were conducted. It was only on two occasions prior to the constitution of the service, written examinations were conducted. It is not correct that in respect of the 3rd respondent alone a different procedure was followed. There were as many as nine persons inducted to the Pondicherry Judicial Service from the service following the same procedure. The question of conducting any written examination or oral interview did not, therefore, arise. The allegation that departure in the case of the 3rd respondent shall only invalidate his appointment to junior scale (Grade II) of the Pondicherry Judicial Service, is unsustainable. 24. According to respondents 1,2 and 4, the judicial posts in the Union Territories do not under the purview of the Union Public Service Commission. Also according to the delegations made by the President of India to the Administrator under Art.239 of the Constitution India in Notification dated 31.8.1979, the Administrator has been empowered to frame and make recruitment, etc., in consultation with the High Court, Madras. Pursuant to said Rules, the Government of Pondicherry appointed the 3rd respondent to the junior (Grade II) and Junior scale (Grade I) of the Pondicherry Judicial Service on recommendations of the High Court. Pursuant to said Rules, the Government of Pondicherry appointed the 3rd respondent to the junior (Grade II) and Junior scale (Grade I) of the Pondicherry Judicial Service on recommendations of the High Court. Even assuming without admitting that Art.234 of Constitution of India applies to this case, the provisions of the said Article have substantially complied with in the case of the appointment of the 3rd respondent to Pondicherry Judicial Service and his subsequent promotion from Grade II to Grade I. 25. The 3rd respondent/appointee has also filed his counter affidavit denying all allegations contained in the affidavit filed in support of the writ petition. He submitted he passed the degree in law during 1975. Applications were called for from in candidates for appointment to the post of Superintendent (Technical) in the Law Department of the Government of Pondicherry. He applied for the post and on being selected appointed to the abovesaid post with effect from 20.3.1978. Thereafter, he was promoted the post of Officer on Special Duty in the rank of Under Secretary to Government in the Department with effect from 7.3.1980. While he was functioning as the Officer on Special Duty in the Law Department, the Government of Pondicherry constituted an Organised Service called Pondicherry Judicial Service. The Government called for option from the Advisers in the Law Department to be encadred to the said service. Incidentally, both Superintendent and as the Officer on Special Duty, the 3rd respondent was engaged works involving rendering of advice on civil, criminal and revenue matters, monitoring settling pleadings at the level of Subordinate Courts, High Court and Supreme Court, drafting of Legislations and instructing the Law Officers of the Government Government cases. Therefore, he gave his option to be considered for appointment Pondicherry Judicial Service. 26. According to the 3rd respondent, by a Notification issued in G.O.Ms.No.31/84-LLD, 2.7.1984, the Government of Pondicherry appointed him along with four others Pondicherry Judicial Service in the junior scale (Grade II) of the said service with effect 8.5.1984. In 1985, he was deputed for one full year training in Legislative Drafting Ministry of Law (Legislative Department), Government of India, which he completed credit, as the report of the officer not less than the Legislative Secretary of the Government of India would show. In 1985, he was deputed for one full year training in Legislative Drafting Ministry of Law (Legislative Department), Government of India, which he completed credit, as the report of the officer not less than the Legislative Secretary of the Government of India would show. On return from the training, he continued to function in Department and was appointed as Under Secretary in the Law Department with effect 27.7.1988. He was further promoted as Deputy Secretary to Government in Department with effect from 18.11.1991. While he was functioning as Deputy Secretary, Government of Pondicherry by an Office Order No.59/SPA/92/ LD, dated appointed him, on the recommendations of the High Court, Madras to the junior (Grade I) of the Pondicherry Judicial Service and posted as the Special Officer Additional Subordinate Judge (Second Additional), Judicial Department, Pondicherry. assumed charge of the said post with effect from 28.2.1992 and by Proceedings No.835/JD/A/92-604, dated 5.3.1992, the Chief Judge, Pondicherry, transferred to the Second Additional Subordinate Judge as many as 100 cases for adjudication. It stage, the petitioner has filed this writ petition to quash the orders dated 27.2.1992 2.7.1984. 27. According to the 3rd respondent, he gained entry in the service of the Law Department, Pondicherry, only by virtue of the law qualification acquired by him and when appointed to the Pondicherry Judicial Service, he was holding for more than three post in Law Department requiring special knowledge of law inasmuch as he was dealing legal advice, Government litigations and prosecutions and drafting of laws. As a fact, the requirement of a degree in law is an obligatory qualification to the Superintendent in the Law Department, which is at present a Group ‘B’ Gazetted allegation that this respondent did not practise law as an advocate nor held a post required knowledge of law has no merits. Having been encadred to the Pondicherry Service in the junior scale (Grade II), the appointment of this respondent to the junior (Grade I), which is only a selection grade of the junior scale, is only in the normal events that come in turn. This respondent could not be held responsible for his not posted in the judicial posts after May, 1984. According to Rule 11 of the F.Rs., Government is at liberty to utilise the services of its officers in any manner it likes with their status. This respondent could not be held responsible for his not posted in the judicial posts after May, 1984. According to Rule 11 of the F.Rs., Government is at liberty to utilise the services of its officers in any manner it likes with their status. Hence, the allegations that this respondent had not evinced any interest took any attempt to get himself posted as a Judicial Officer, are unsustainable. 28. A common counter affidavit was filed on behalf of the Registrar, High Court, W.P.Nos.3642 and 9391 of 1991. While dealing with the allegation in paragraph affidavit that the 3rd respondent had neither practised as an Advocate nor held under the Government which requires knowledge of law for a period of not less than years in substantial capacity as on 8.5.1984 is not correct, the 5th respondent has the counter affidavit as follows: The 3rd respondent was appointed to the post of Legal Adviser, Law Department, Territory of Pondicherry, which requires knowledge of law, and held the said post period of more than three years on the date of his appointment as junior scale and thus, he satisfied the condition prescribed in Rule 11(1)(b) of the Rules. Rule the Rules reads as follows: “(b) must have practised as an Advocate or must have held any post under the State Government or Union Territory Administration requiring knowledge of law for of not less than three years and ” As per the aforesaid rule, holding of a post which requires the knowledge of law for of three years alone is sufficient for appointment to the post of junior scale (Grade the post need not be in a substantial capacity as stated by the petitioner. The himself admitted that the 3rd respondent continued in the Law Department appointment to junior scale (Grade II) of the Pondicherry Judicial Service. For appointment even to the post of Superintendent in the Law Department, law degree is essential. Therefore, the appointment of respondent to the Pondicherry Judicial Service is legal and proper. 29. The himself admitted that the 3rd respondent continued in the Law Department appointment to junior scale (Grade II) of the Pondicherry Judicial Service. For appointment even to the post of Superintendent in the Law Department, law degree is essential. Therefore, the appointment of respondent to the Pondicherry Judicial Service is legal and proper. 29. It is further stated in the counter that a Selection Committee consisting of the Hon’ble Chief Justice, the Chief Secretary, Pondicherry Administration, Pondicherry, Secretary, Law Department, Pondicherry, and the then Chief Judge, Head of Department, Pondicherry, held a meeting on 7.1.1984 and the said committee recommended the appointment of ten officers to the Pondicherry Judicial Service on basis against the then existing vacancies, reserved and unreserved, and such vacancies may arise in future. The Committee had also stated in its minutes that until the aforesaid officers are so appointed on regular basis, they may be allowed to continue to hold the on officiating basis against the regular reserved vacancies and temporary vacancies. relevant portion of the minutes of the Selection Committee reads as follows: “The Selection Committee considered the case of the following eligible Judicial Officers had been appointed prior to 25.7.1983, i.e., the issue of orders making initial recruitment the service and who were holding the judicial posts of District Munsif under Rule 31, namely, Date of appointment 1. Thiru L.Veeranath Rao 4.7.1975 2. Tmt.S.R.Pushpavalli 23.2.1977 The Selection Committee also considered the case of two Legal Advisers to Government service in the Union Territory of Pondicherry, who were eligible under the rules, V.Narayanaswami, Under Secretary to Government, Law Department, and Thiru V.A.Edward Kumar, Officer on Special Duty, Law Department. Among these two officers, V.Narayanaswami has been in service from 3.2.1978 and was eligible for being appointed the initial recruitment to the service, but could not be included for want of vacancy. V.A.Edward Kumar, though appointed as Legal Adviser after the publication of the Rules, been in service as Legal Adviser for more than three years at the time of the recruitment to the service. The Committee also considered that everyone of the officers mentioned above had selected by properly constituted Selection Committee and appointed in accordance with Recruitment Rules which were prevalent at the time of their appointment as regards respective posts. The Committee also considered that everyone of the officers mentioned above had selected by properly constituted Selection Committee and appointed in accordance with Recruitment Rules which were prevalent at the time of their appointment as regards respective posts. The Committee verified and found that all the aforesaid officers have the necessary qualifications for being appointed to Grade II in the junior scale of the Service, as prescribed in Rule 11. The Committee assessed the past performance of all the officers concerned scrutinising their confidential reports and also considered the proceedings of the Minutes the last Selection Committee in which the Judicial Officers in Serial Nos.5 to 8 in above were selected for appointment. The Committee ascertained from the Law Secretary and the Chief Judge, who are the members of the Committee, that the performance the aforesaid candidates have been throughout good. Taking into account the general assessment about the past services of the aforesaid and having found all of them eligible and suitable for being appointed to Grade II junior scale of the Service, the Selection Committee concluded that the aforesaid ten may be recommended for appointment.” 30. Thus, it is stated in the counter affidavit of the 5th respondent that since the Selection Committee has specifically stated that V.A.Edward Kumar (3rd respondent), appointed as Legal. 31. Thiru G.Patric 18.11.1977 4. Thiru G.Rajasurya 9.1.1980 5. Thiru D.K.Venugopalu 14.6.1983 6. Thiru D.Ramabadhran 14.6.1983 7. Thiru R.Parthasarathy 14.6.1983 8. Tmt.CBoubavady 14.6.1983 Adviser after the publication of the Rules, had been in service as Legal Adviser for more three years at the time of the initial recruitment to the service, i.e., 25.7.1983 and as he is eligible for appointment as junior scale (Grade II). It is further stated that the list candidates including the 3rd respondent, along with nine others selected by the Selection Committee for appoint-ment as junior scale (Grade II) to the Pondicherry Judicial Service, was approved by the High Court and the same was communicated to the Secretary Government, Law Department, Pondicherry, in its letter D.O.No.1329/84/B1, 8.5.1984. After the approval by the High Court, the Pondicherry Administration appointed five of them including the 3rd respondent as junior scale (Grade II) in G.O.Ms.No.31/84-LLD, dated 2.7.1984. As such, the appointment of the 3rd respondent junior scale (Grade II) is valid and proper. After the approval by the High Court, the Pondicherry Administration appointed five of them including the 3rd respondent as junior scale (Grade II) in G.O.Ms.No.31/84-LLD, dated 2.7.1984. As such, the appointment of the 3rd respondent junior scale (Grade II) is valid and proper. The Government of Pondicherry in their dated 24.1.1992 had sent a proposal for the approval of the High Court for promotion E.V.Kumar as senior scale and of V.AEdward Kumar (3rd respondent), junior scale (Grade to junior scale (Grade!). The High Court recommended the said proposal and the same communicated in its D.O.Letter No.l33/91/Con.B1, and on the recommendation of the Court the Pondicherry Administration appointed the 3rd respondent as junior scale (Grade Therefore, the appointment of the 3rd respondent as junior scale (Grade II) is in order proper. 32. W.P.No.9391 of 1992: The petitioner and the respondents in this writ petition same as in W.P.No.3642of 1992. The petitioner has filed this writ petition for the following relief: To issue a writ of quo warranto or any other appropriate writ or order directing respondents to show cause under what authority the 3rd respondent claims his appointment to the public office of Judicial Officer, junior scale (Grade land II) in the Pondicherry Service and perform duties connected thereto and enjoys the privileges relating therewith and to pass such further or other order as this Court may deem fit. 33. The averments in this writ petition are identical with W.P.No3642 of 1992. In this petition, the petitioner refers to the provisions of the Pondicherry Civil Courts Act, 1936 particularly to Sec 3 of the Act. The Judicial Service in Pondicherry, which is a Union under the Constitution, is governed by the Pondicherry Judicial Service Rules, 1980, amended from time to time (hereinafter referred to as the Rules). Part II of the provides for the constitution and strength of the service. Part III provides for the method recruitment Part IV provides for probation. Rule 3 provides that the Judicial Service consist of junior scale and senior scale posts. The writ petition relates only to junior The junior scale shall have two grades, viz., time scale grade (Grade II) and selection grade (Grade I). The posts in the time scale grade in the junior scale shall be civil Group B gazetted. All the other posts shall be civil posts Group A gazetted. 34. The writ petition relates only to junior The junior scale shall have two grades, viz., time scale grade (Grade II) and selection grade (Grade I). The posts in the time scale grade in the junior scale shall be civil Group B gazetted. All the other posts shall be civil posts Group A gazetted. 34. The affidavit also refers to the method of recruitment as provided under Rule 10 which relates to constitution of a Selection Committee. Rule 11 provides qualification for direct recruits to the junior scale in the service. Rule 12 provides that High Court shall, before making recommendation to the Administrator, invite applications advertisement and may require applicants to give such particulars as it may prescribe may further hold such tests as may be considered necessary. The Union Territory Pondicherry is governed by Art.239 of the Constitution of India and hence, the administered by the President of India acting through the Lieutenant Governor Pondicherry. Sec 9 of the Pondicherry (Administration) Act, 1962, provides for the extension of the jurisdiction of the Madras High Court to the Union Territory of Pondicherry as and 6.11.1962. By virtue of Sec. 10 of that Act, the High Court of Madras exercises jurisdiction over the Union Territory of Pondicherry. Art.234 of the Constitution of India provides recruitment of persons other than District Judges to the Judicial Service. Appointment persons other than District Judges to the Judicial Service of a State shall be made Governor of the State in accordance with the rules made by him in that behalf consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State, Art.50 of the Directive Principles of State provides that the State shall take steps to separate the judiciary from the executive public services of the State. The affidavit also refers to the earlier writ petition filed petitioner in W.P.No3642 of 1992. The contentions raised in the earlier writ petition have again been reiterated in this affidavit. It is stated that the 3rd respondent is an usurper in of Judicial Officer, junior scale (Grade II) since he neither had the qualification for post nor the procedure adopted to bring about his appointment was legal. 35. The reasons for filing this writ petition belatedly have also been explained in paragraph 26 of the affidavit. It is stated that the 3rd respondent is an usurper in of Judicial Officer, junior scale (Grade II) since he neither had the qualification for post nor the procedure adopted to bring about his appointment was legal. 35. The reasons for filing this writ petition belatedly have also been explained in paragraph 26 of the affidavit. There is no wilful delay on the part of the petitioner in presenting petition for a writ of quo warranto since the information relating to the qualification 3rd respondent and the method adopted in bringing the appointment in question, were made known, when his appointment was announced in the year 1984 with a reference on the recommendation of the High Court, Madras, I had no reason to doubt the recommendation of the Hon’ble Court, Madras, could be not in accordance with As a responsible citizen, I cannot move the Hon’ble High Court on mere suspicion, or that loo to challenge the appointment of Judicial Officer by way of Writ of quo warranto. 36. It is further stated in the affidavit that the 3rd respondent never assumed office Judicial Officer, junior scale (Grade II) and got posting as Presiding Officer of a discharge the judicial functions. As he was discharging non-judicial functions, there threat to the majesty of justice and to the dispensation of justice from the 3rd respondent, who was not qualified and not appointed in accordance with the procedure established law. When the threat to the justice -became a reality by the posting of the 3rd respondent a judicial post in the rank of a Subordinate Judge, endowed with unlimited pecuniary jurisdiction and limited appellate powers, it has become an immediate necessity to present writ petition for a writ of quo warranto. 37. A detailed counter affidavit has been filed by respondents 1,2 and 4 reiterating the averments as in W.P.No.3642 of 1992. It is again reiterated in this counter affidavit petitioner has not challenged the appointment of the 3rd respondent all these years impugned order dated 27.2.1992 is only a sequal to the notification issued on when the turn for promotion to the next grade of the 3rd respondent occurred. petitioner is clearly guilty of laches and the writ petition is liable to be dismissed ground alone. 38. Paragraph 18 of the counter affidavit deals with the locus standi of the petitioner maintaining the writ petition. petitioner is clearly guilty of laches and the writ petition is liable to be dismissed ground alone. 38. Paragraph 18 of the counter affidavit deals with the locus standi of the petitioner maintaining the writ petition. According to the State Government, the writ petition sustainable since the Pondicherry Bar Association is not registered as a professional organisation or body and the petitioner cannot profess himself to be a representative any such professional body and thus the petitioner lacks locus standi to file this writ The counter affidavit also refers to the provisions of Rule 8 of the Pondicherry Service Rules, 1980, which deals with initial recruitment to the service. It also refers Rules 9, 10, etc., and also other provisions of the Rules. It is stated that the contention the petitioner that there was no possibility of selecting the 3rd respondent separately without application, without written examination and without personal interview interview, has no force. The judicial posts in the Union Territories do not fall under purview of the Union Public Service Commission. There is no violation of the directive principles in Art.50 of the Constitution of India. 39. The 3rd respondent has filed a separate counter affidavit in the present writ petition reiterating the same contentions which have been raised in W.P.No.3642 of 1992. 39. W.P.No.14035 of 1992: This writ petition has been filed by a practising lawyer Pondicherry against the Union of India, Registrar, High Court, Madras and five other Judicial Officers including the 3rd respondent in the other two writ petitions, for a writ of warranto directing the respondents to show under what authority respondents 2 to 5 claim their appointments to the public offices included in junior scale (Grade II) and (Grade I) the Pondicherry Judicial Service and consequently the posts respectively held by them date and performing the duties connected thereto and enjoy the privileges relating therewith and to pass suitable orders. 40. Here again, the petitioner has elaborately dealt with the various provisions of the Rules. 40. Here again, the petitioner has elaborately dealt with the various provisions of the Rules. The Government of Pondicherry in G.O.Ms.No.54/ 83-LLD, dated 25.7.1983 appointed, pursuance of sub-rule (1) of Rule 7 read with sub-rule (1) of Rule 8 of the Rules and on recommendations of the High Court of Madras, the following officers and Legal Advisers Government to the Pondicherry Judicial Service at its initial constitution with effect 17.12.1980 in the scale/grade and in the scale of pay noted against each, viz., Name of Officer Scale/Grade Scale of Pay 1. Dr.David Annoussamy Senior Scale Rs.1200-50-1300- 60-1600- EB- 60-1900-100- 2000 2. Mr.J.Gnany -do- -do- 3. Mr.A.Chandrasekhara Menon -do- -do- 4. Mr.S.Ramalingam -do- -do- 5. Shahoul Abdoul Hamid Juniour Scale (Selection Grade) (Gr.I) Rs.1100-50-1600 6. Mr.A.John ambrose -do- -do- 7. Mr.R.Govindarajan -do- -do- 8. Mr.P.Prabjashankar -do- -do- 9. Mr. N.Krishnamurthy -do- -do- 10. Mr.G.Adimoulame Junior Scale (Grade II) Rs.650-30-740- 35-810 EB-35-880-40- 1000-EB-40-1200 11. Mr.B.Xavier -do- -do- 12. Mr.S.Nadamuni -do- -do- 13. Mr.P.A.Subramanian -do- -do- 14. Mr.E.V.Kumar -do- -do- 15. Mr.K.A.Prabhakara Rao -do- -do- 16. Mr.S.Murgaboopathy -do- -do- 17. Mr.R.Venkatavaradhan -do- -do- 41. Respondents 2 to 5 were holding judicial posts in Pondicherry having been under the old Rules and the 6th respondent (3rd respondent in the other two writ was holding the post of Officer in Special Duty in Pondichcrry at the time commencement of the Rules as amended viz., 17.12.1980. According to the petitioner, names of respondents 2 to 6 had been sent to the High Court, Madras along with 17 referred to above, for the purpose of consideration for appointment under Rule Rules as Judicial Officers and Legal Adviser to the Government as the case may entire authorised strength of the service having been filled up by the above officers, was no post available to respondents 2 to 6 for being appointed to the service at the constitution. By one more amendment made in Pondicherry Judicial Service (Amendment) Rules, 1983, published in Extraordinary Gazette No.27, dated 9.11.1983, G.O.Ms.No.70/S3-LLD, dated 3.11.1983, the Rules were further amended inter respect of Rule 11. By one more amendment made in Pondicherry Judicial Service (Amendment) Rules, 1983, published in Extraordinary Gazette No.27, dated 9.11.1983, G.O.Ms.No.70/S3-LLD, dated 3.11.1983, the Rules were further amended inter respect of Rule 11. The said Amendment Rules of 1983 substituted Rule 11 by a new which the qualification for direct recruits to the junior scale in the service has been as follows: (a) must be a citizen of India; (b) must have practised as an Advocate or must have held any post under the Central State Governments or Union Territory Administrations, requiring knowledge of law period of not less than three years and must be not more than 32 years of age on day of January of the year in which his appointment is made. 42. The Government of Pondicherry by a further amendment to the rules made Pondicherry Judicial Service (Amendment) Rules, 1984, brought into effect from the publication of the Rules in the Official Gazette Extraordinary No.7, dated 27.3.1984, amendments to the Schedule to the Rules. By these amendments, the Government of Pondicherry increased the authorised permanent strength of the included in the junior scale, time scale (Grade II) from 8 to 10. After the above amendment of the Rules dated 9.11.1983 and 27.3.1984, the Government by a Notification G.O.Ms.No.31/84-LLD, dated 2.7.1984 appointed in pursuance of sub-rule (1) of Rule 7 with Rule 14 of the Rules, and on the recommendations of the High Court, Madras, respondents 2 to 6 to the juniorscale (Grade II) of the Pondicherry Judicial Service. The Notification further stated that the appointment of respondents 4 to 6 to the service without prejudice to their officiation on other duties as Manager (Legal) in the Pondicherry Industrial Promotion, Development and Investment Corporation, Pondicherry, and Officer Special Duty in the Law Department respectively. 43. In pursuance of the appointment to the junior scale (Grade 11) of the service, respondent was promoted temporarily to the junior scale (Grade I) of the service order dated 18.2.1988 and the 2nd respondent is continuing in the same grade functioning as Chief Judicial Magistrate, Pondicherry, the post included in junior scale I) of the service. By a Notification in G.O.Ms.No.23/93-LLD, dated 1.6.1992, the respondent was promoted to the junior scale (Grade I) of the service with effect 19.11.1991 forenoon and is now functioning as the First Addl. Sub Judge, Pondicherry. By a Notification in G.O.Ms.No.23/93-LLD, dated 1.6.1992, the respondent was promoted to the junior scale (Grade I) of the service with effect 19.11.1991 forenoon and is now functioning as the First Addl. Sub Judge, Pondicherry. the same Notification dated 1.6.1992, the 4th respondent was promoted to junior (Grade I) of the service with effect from the forenoon of 11.12.1991 and has been thereafter deputed to the Law Department as Director of Prosecution and is now functioning in the post. By G.O.Ms.No.41/92-LD, dated 29.6.1992, the 5th respondent was promoted junior scale (Grade I)of the service with effect from the forenoon of 27.2.1992 prejudice to his appointment on deputation to the Pondicherry Textiles Corporation as Law Officer in the Office of the Legal Adviser (Government Undertakings), Pondicherry. the same Notification, the 6th respondent was promoted to the junior scale (Grade I) service with effect from 27.2.1992 and posted as Special Officer-cum-Sub Judge Addl.), Judicial Department, Pondicherry. The 6th respondent has been recently deputed Commissioner of Payments under the Anglo French Textiles (Transfer of Undertaking) 1986. 44. It is submitted by the petitioner that all these promotions and postings are based original appointment of respondents 2 to 6 to the Pondicherry Judicial Service Notification issued in G.O.Ms.No.31/84-LLD, dated 2.7.1984. After the initial recruitment the service made under sub-rule (1) of Rule 8 of the Rules, made in Notification issued G.O.Ms.No.54/83-LLD, dated 25.7.1983, there was no invitation of applications advertisement and no selection was made by the High Court following the procedure Rule 12 of the said Rules. Respondents 2 to 6 have also not been appointed at the constitution made under sub-rule (1) of Rule 8 as per the above Government Order 25.7.1983. Such an initial recruitment having been contemplated only as a one measure, respondents 2 to 6 could not have been appointed under Rule 8. Their ment is clearly a recruitment made after the initial constitution falling under Rule 9 Rules and ought to have been made following the procedure envisaged under Rule 12 Rules. Respondents 2 to 6 having been appointed without invitation of applications conduct of tests or interview by the High Court as envisaged under Rule 12 of the Rules, usurpers to the office to which they were appointed by the Notification issued G.O.Ms.No.31/84-LLD, dated 2.7.1984. Respondents 2 to 6 having been appointed without invitation of applications conduct of tests or interview by the High Court as envisaged under Rule 12 of the Rules, usurpers to the office to which they were appointed by the Notification issued G.O.Ms.No.31/84-LLD, dated 2.7.1984. By virtue of their appointment in the junior (Grade II) of the service, respondents 2 to 6 have been promoted to the selection (Grade I) of the junior scale and pursuant thereto have been appointed to hold respective posts on date in the Judicial Department or as the case may be, in departments on deputation. Having regard to the fact that the recruitment to the scale (Grade II) of the service was not in accordance with the Rules, respondents 2 to not entitled and have no legal authority to hold the post which they are at present holding. 45. The 1st respondent, Union of India through the Secretary to Government, Department, Government of Pondicherry, has filed a counter affidavit. Similar contentions raised in the counter affidavit filed in the other two writ petitions, have again been reiterated in this counter. After narrating the facts, the counter proceeds further to state that pursuant to the appointment made by notification dated 2.7.1984, respondents 2 to 6 have given promotion to the selection grade of the junior scale of the Pondicherry Judicial Service and are either holding the promotion post the service or have been appointed on deputation to comparable ex-cadre posts. It is at stage, the petitioner has filed the above writ petition for issue of a writ of quo warranto. stated that respondents 2 to 6 were appointed to the junior scale (Grade II) of Pondicherry Judicial Service as early as 8.5.1984 and their appointments were duly notified in G.O.Ms.No.31/84-LLD, dated 2.7.1984. The petitioner had not chosen to challenge above appointments all these years. Consequent on the appointment of respondents 2 to the Pondicherry Judicial Service, they have been promoted to higher posts in the junior scale (Grade I) of the service and respondents 4 to 6 have also been appointed deputation in ex-cadre posts respectively as Director of Prosecution, Law Officer in the Office of the Legal Adviser (Government Undertakings) and Commissioner of Payments. All these appointments are only sequel to their initial appointment to the juniorscale (Grade II) of Pondicherry Judicial Service done in May, 1984. All these appointments are only sequel to their initial appointment to the juniorscale (Grade II) of Pondicherry Judicial Service done in May, 1984. The petitioner is, therefore, guilty of laches and after having kept quiet all these years, the petitioner cannot seek to interfere with vested rights of respondents 2 to 6 by praying for issue of a writ of quo warranto. 46. According to the 1st respondent, as per Rule 8 of the Rules, for initial recruitment to service, the High Court shall recommend to the Administrator suitable persons appointment to the service from among the Judicial Officers and Legal Advisers to Government in service in the Union Territory of Pondicherry at the commencement of these rules and the High Court may at its discretion examine the character rolls and hold other tests as may be deemed fit. Inasmuch as respondents 2 to 5 were already holding judicial posts in the Union Territory of Pondicherry and the 6th respondent was holding post of Superintendent (Legal) and later that of Officer on Special Duty in the Department, which posts involved duties of rendering legal advice to the Government, they were also considered for appointment to the service at the initial constitution. As could not be appointed for want of cadre posts, they were subsequently taken up consideration and appointed to the service. It is pertinent to point out that Rule 9 of initial recruitment shall be made by direct recruitment from the Bar and also from service provided they are otherwise found eligible by the Selection Committee. As there were officers both in the Judiciary and in the Law Department, who were eligible to be considered at the time of initial constitution but who could not be inducted into the service for want posts within the sanctioned cadre strength of the service, the High Court considered them later and appointed them. The Selection Committee constituted under Rule 10 of the Rules considered respondents 2 to 6, who could not be inducted at the time of initial constitution 1983, and selected them for encadrement to the junior scale (Grade II) of the Pondicherry Judicial Service later when the vacancies arose. Inasmuch as the selection was thus confined to the services, the question of calling for applications by advertisement in the newspapers, etc. did not arise. 47. Inasmuch as the selection was thus confined to the services, the question of calling for applications by advertisement in the newspapers, etc. did not arise. 47. Rules 9 and 12 of the Rules will have application only if the High Court has to select persons from the open market. The circumstances under which respondents 2 to 6 were selected, as already explained, were peculiar, in that they were very much eligible to considered for initial recruitment but could not be inducted into the service for want vacancies. It was in view of this peculiar situation, the Government of Pondicherry and High Court, Madras, took a conscious decision to confine the selection to those who were already in service but who were left out of the initial constitution for want of vacancies matter of fact, there is a power vested in the Lieutenant Governor to relax the rules respect to any class or category of persons, under Rule 32 of the Rules. While it is petitioner cannot be heard to contend that the appointment of respondents 2 to 6 Pondicherry Judicial Service junior scale (Grade II) was in violation of Rule 12 read with 9 of the Rules. According to the 1st respondent, respondents 2 to 6 had possessed qualifications prescribed under the Pondicherry Judicial Service for appointment to scale (Grade II) on the date on which the rules came into force and also at the time at their Selection and appointment were made. Hence, respondents 2 to 6 are persons qualified under the Rules to hold the junior scale (Grade II) posts in the, Pondicherry Judicial Service. Their promotion to junior scale (Grade I) and deputation to other ex-cadre posts are valid and by no stretch of interpretation respondents 2 to 6 could be construed as usurpers in their respective posts. 48. On behalf of respondents 2 to 5, the 4th respondent G.Patric filed a counter According to him, the writ petition is not maintainable for the reason that the petitioner no locus standi to pray for a writ of quo warranto. W.P.Nos.3642 and 9391 of 1992 been filed by the Secretary of the Pondicherry Bar Association: against the Union and others for a writ of certiorari and writ of quo warranto respectively. W.P.Nos.3642 and 9391 of 1992 been filed by the Secretary of the Pondicherry Bar Association: against the Union and others for a writ of certiorari and writ of quo warranto respectively. In W.P.No.9391 1992 when the Bar Association has restricted the relief in so far as the appointment 3rd respondent Edward Kumar therein alone is concerned, and inasmuch as Association has categorically averred that the other respondents (respondents 2 to been discharging judicial functions since 1975-80, a member of the Bar Association in Pondicherry Courts viz., the petitioner herein had no locus standi to seek for a writ warranto and hence this writ petition is liable to be dismissed. The petitioner has respondents 2 to 6 in this single writ petition and prayed for a writ of quo warranto each respondent. Each respondent has been appointed by a separate and independent and therefore, the cause of action ‘ in respect of each contesting respondent is differ as such, a single writ petition is not maintainable. 49. The writ petition lacks in bona fide and it does not refer to any legal injury caused public or to the Government or to any individual ever since their appointment in the Judicial Department and subsequently also after their induction to the Pondicherry Service. The present writ petition is hit by acquiescence and estoppel and on that score the writ of quo warranto, which is a discretionary relief and which is not issued as a right, has to be refused. Respondents 2 to 5 were selected by properly constituted Committee and appointment in accordance with the recruitment rules which were at the time of their appointment (prior to the formulation of the Pondicherry Judicial The Pondicherry Judicial Service Rules were framed by the Lieutenant Governor Pondicherry, in consultation with the High Court, Madras. It does not supersede the rules framed under Art.309 of the Constitution of India. Therefore, the service conditions respondents 2 to 5 like the method of appointment, probation, confirmation and are governed by the rules which were prevalent at the time of recruitment. 50. Respondents 2 to 5 were placed on probation for two years since their appointment the Judicial Department, Pondicherry. The earlier appointments hold good and they in law. Therefore, the service conditions respondents 2 to 5 like the method of appointment, probation, confirmation and are governed by the rules which were prevalent at the time of recruitment. 50. Respondents 2 to 5 were placed on probation for two years since their appointment the Judicial Department, Pondicherry. The earlier appointments hold good and they in law. The induction to the Pondicherry Judicial Service on 2.7.1984 cannot wipe earlier selection and they cannot be termed as usurpers of judiciary without legal The counter affidavit also furnishes the service particulars of respondents 2 to Government of Pondicherry constituted a new service for the Judicial Officers in the Territory of Pondicherry in exercise of the powers conferred by Proviso to Art.309 Constitution of India. The Lieutenant Governor of Pondicherry in consultation with the High Court issued a Notification framing the rules called the Pondicherry Judicial Rules, 1980. The said Rules do not have the constitutional backing and the same cannot applied to the Judicial Officers appointed under the old recruitment rules. In any event, 25 of the said Rules, contemplates that at the time of initial recruitment to the Pondicherry Judicial Service, the’ consent of the officers serving in the existing Judicial Department Pondicherry have to be obtained for bringing them under the Pondicherry Judicial Accordingly, respondents 2 to 5 have given their consent for such inclusion in the service., Therefore, it is apparent that the 1st respondent desired to induct such Officers to the Pondicherry Judicial Service without resorting to the procedure contemplated for regular appointment. Respondents 2 to 5 constitute a class or a category of persons have already undergone the process of selection under the old recruitment rules and annual confidential reports were available in respect of their capacity to function as Therefore, the Government of Pondicherry and the High Court, Madras, thought it fit so far as respondents 2 to 5 were concerned, the process of selection need not be undergone because they have already been selected and appointed under the old rules. Once a has been selected after undergoing the process of selection and has been appointed vacant post which existed at that time, he cannot be asked to undergo the process which amounts to double jeopardy. 51. Once a has been selected after undergoing the process of selection and has been appointed vacant post which existed at that time, he cannot be asked to undergo the process which amounts to double jeopardy. 51. It is stated that as on to-day, respondents 2 to 5 are holding the posts of junior (Grade I) in the Pondicherry Judicial Service, which is equivalent to Subordinate Judges. were appointed under the old rules and they have already acquired the status of permanent Judges and therefore, they were found fit for promotion as Junior scale (Grade I), and recommendation of the High Court, they were promoted as Subordinate Judges. assuming that the said Notification of the year 1984 is illegal, their status as permanent Judges under the old recruitment rules remains and they can continue as Judges. The in Pondicherry have been created under the Pondicherry Civil Courts Act and not under Pondicherry Judicial Service Rules, 1980, and they can be presided over by Judicial Officers recruited earlier in Pondicherry Judicial Department. In such a case, their continuance Judges is not affected and they cannot be named as usurpers. The writ of quo warranto to be dismissed on this ground also. 52. Even though respondents 2 to 5 have been inducted into Pondicherry Judicial Service vide Notification dated 2.7.1984, along with the 6th respondent Edward Kumar, and Court finds that the 6th respondent as having been not properly inducted to the Pondicherry Judicial Service from his executive post of Officer on Special Duty, Law Department, yet, said Notification pertaining to respondents 2 to 5 is sustainable and it will not be offending the constitutional provisions. The impugned notification has been acted upon publicly respondents 2 to 5 have been diligently discharging their duties as Judicial Officers 1975-80 and that they have also been promoted to the level of Subordinate Judges as scale (Grade I) officers in the Pondicherry Judicial Service on 27.2.1992. Balance convenience is in their favour and therefore, there is no merit in the prayer for quo warranto. 53. The 6th respondent has reiterated the very same contentions raised in the counter affidavits ‘17th July, 1984 filed in the other two writ petitions. Hence, I do not think necessary to repeat them here also. 54. The 7th respondent has not filed any separate counter affidavit in this writ petition. 55. 53. The 6th respondent has reiterated the very same contentions raised in the counter affidavits ‘17th July, 1984 filed in the other two writ petitions. Hence, I do not think necessary to repeat them here also. 54. The 7th respondent has not filed any separate counter affidavit in this writ petition. 55. I have heard Mr.G.Masilamani, learned senior counsel for the petitioners W.P.Nos.3642 and 9391 of 1992, Mr.S.Mahimai Raj, learned counsel for the petitioner W.P.No.14035 of 1992, Mr. R.Krishnamurthi, learned senior counsel for respondents 1,2 4 in W.P.Nos.3642 and 9391 of 1992 and for the 1st respondent in W.P.No. 14035 1992,Mr.R.Muthukumaraswami, learned counsel for the 3rd respondent in W.P.Nos.3642 9391 of 1992 and 6th respondent in W.P.No.14035 of 1992, Mr.N.R.Chandran, learned counsel for respondents 2 to 5 in W.P.No.14035 of 1992 and Mr. A.S. Venkatachalamoorthy, learned Special Government Pleader for the 5th respondent in W.P.Nos. 3642 and 9391 1992 and the 7th respondent in W.P.No.14035 of 1992. The matter was argued at length the learned counsel appearing for the respective parties. 56. All the three writ petitions raise common questions relating to the validity of the orders of the Government of Pondicherry dated 2.7.1984 and 27.2.1992. While the First two petitions viz., W.P.Nos.3642 and 9391 of 1992 question, the validity of the aforesaid orders relating to the 3rd respondent Mr.Edward Kumar, the third writ petition viz., W.P.No.14035 of 1992 questions the aforesaid orders relating to the appointment of five persons Mrs.S.R.Pushpavalli, Mr.L.Veeranath Rao, Mr.G.Patric, Mr.G.Rajasuria and Mr.V.A.Edward Kumar, who are respondents 2 to 6 in W.P.No.14035 of 1992, who have been appointed Grade II junior scale of the Pondicherry Judicial Service and promoted to junior scale Grade by the said orders respectively. 57. Let me first deal with W.P.Nos. 3642 and 9391 of 1992 and then come to W.P.No.14035 of 1992. 58. The two impugned orders are reproduced hereunder. "17th July, 1984 LAWGAZETTE Government of Pondicherry Law and Labour Department (G.O.Ms.No.31/84-LLD, dated 2nd July, 1984) NOTIFICATION In pursuance of sub-rule (1) of Rule 7 read with Rule 14 of the Pondicherry Judicial Service Rules, 1980 and on the recommendations of the High Court, Madras, the Lieutenant Governor of Pondicherry hereby appoints the following persons to the Junior Scale (Grade Pondicherry Judicial Service in the scale of Rs.650-30-740-35-810-EB-35-880-40 40-1200 with effect from 8th May, 1984, namely, 1. Tmt.S.R.Pushpavalli. 2. Thiru. L.Veeranath Rao. 3. Thiru G.Patric. 4. Thiru G.Rajasuria. 5. Tmt.S.R.Pushpavalli. 2. Thiru. L.Veeranath Rao. 3. Thiru G.Patric. 4. Thiru G.Rajasuria. 5. Thiru V.A.Edward Kumar. 2. The appointment of Thiru G.Patric and Thiru V.A.Edward Kumar to the said service without prejudice to their officiating on other duty as Manager (Legal) in the Pondicherry Industrial Promotion Development and Investment Corporation and Officer on Special in the Law Department, Pondicherry, respectively. (By order of the Lieutenant Governor) -------- " Government of Pondicherry Law and Labour Department OFFICE ORDER Sub: Pondicherry Judicial Service - Promotion, postings and transfers - regarding. -------- Thiru R.Venkatavaradhan, Special Officer in the Judicial Department, Pondicherry, transferred and posted as the Principal Subordinate Judge, Pondicherry, vice Tmt. Duraiswami transferred. Tmt.Pushpa Duraiswami, Principal Subordinate Judge, Pondicherry, is transferred and as Chief Judicial Magistrate, Pondicherry, vice Thiru S.Murugaboopathi transferred. S.Murugaboopathy, Chief Judicial Magistrate, Pondicherry, is transferred and posted Subordinate Judge, Mahe, vice Thiru E.V.Kumar promoted. Thiru L.Veeranath Rao, Additional Subordinate Judge, Pondicherry, is designated as Additional Subordinate Judge, Pondicherry. On the recommendations of the High Court, Madras, Thiru G.Rajasuria, a Junior Scale II Officer of the Pondicherry Judicial Service is promoted to the Junior Scale Grade I said service with immediate effect in the scale of pay of Rs.3,000-100-3,500- without prejudice to his appointment on deputation to the Pondicherry Textile Corporation Limited as Law Officer in the office of the Legal Adviser (Government Undertakings), Pondicherry. (Sd.) A.Chandrasekhara Menon, Secretary to Government". No.59/SPA/92-LD Pondicherry, 27th February 1992. On the recommendations of the High Court, Madras, Thiru V.A.Edward Kumar, a Junior Grade II Officer of the Pondicherry Judicial Service, at present officiating as Secretary to Government in the Law Department is promoted with immediate effect Junior Scale Grade I of that service in the scale of pay of Rs.3,000-100-3,500- and posted as Special Officer-cum-Subordinate Judge (Second Additional), Department, Pondicherry, vice Thiru R.Venkatavaradhan, Special Officer transferred. deal with such matters falling under the jurisdiction of the Subordinate Judge’s Court assigned to him by the Principal District Judge, Pondicherry, from time to time, by virtue the Notification issued in No.4355/74-LLD.I dated 17th January, 1975, as amended Notification issued in G.O.Ms.No.60/90-LLD dated 13th August, 1990, of the Law and Department, Pondicherry. Thiru R.Venkatavaradhan shall move first. (By order of the Lieutenant Governor) (Sd.) A.Chandrasekhara Menon, Secretary to Government (Law).". 59. Several contentions were raised by the learned counsel for the petitioners challenging the impugned orders mentioned above. Thiru R.Venkatavaradhan shall move first. (By order of the Lieutenant Governor) (Sd.) A.Chandrasekhara Menon, Secretary to Government (Law).". 59. Several contentions were raised by the learned counsel for the petitioners challenging the impugned orders mentioned above. The first head of challenge raised Mr.G.Masilamani, learned Senior Counsel for the petitioners is that the 3rd respondent Edward Kumar is unqualified. He invited my attention to the admission made in the affidavit of respondents 1, 2 and 4 (page 29 of the counter affidavit in W.P.No.9391 of and also by the learned Senior Counsel for these respondents, that the 3rd respondent appointment was made by way of “ Additional Initial Recruitment ” . But, in page 33 same counter affidavit contradictory stand was taken to the effect that the 3rd respondent recruitment was made under Rule 9 of the Rules (Regular Recruitment). 60. Before I proceed further, it is relevant and useful to extract certain Rules from Pondich-erry Judicial Service Rules, 1980, (G.O.Ms.No.1/ 80-LLD,dated 10.1,1980) published in Extraordinary Gazette No. 12 dated 23.1.1980, issued by the Government of Pondicherry, Law and Labour Department. In exercise of the powers conferred by the Proviso to of the Constitution of India read with the Government of India, Ministry of Law, Justice Company Affairs (Department of Justice) Notification No.30/16/76-Jus., dated 31.8.1979, and all other powers enabling him in this behalf, the Lieutenant Governor of Pondicherry, consultation with the High Court, Madras is pleased to make this rule called Pondicherry Judicial Service Rules, 1980. As per Rule 1 (2), the Rules shall come into force from the of publication in the Official Gazette viz., 23.1.1980. Three important definitions are be noticed in the context of this case. They are, Rule 2(c) “ High Court ” means the Court of Madras; Rule 2(e) “ Service ” means the Pondicherry Judicial Service; and Rule “ initial recruitment ” means the first recruitment and appointment made to the immediately after the commencement of these rules. 61. The following rules are also extracted to appreciate the contentions of the respective parties: Rule 3: (1) On and from the date of commencement of these rules, there shall constituted a Civil Service to be known as the Pondicherry Judicial Service. 61. The following rules are also extracted to appreciate the contentions of the respective parties: Rule 3: (1) On and from the date of commencement of these rules, there shall constituted a Civil Service to be known as the Pondicherry Judicial Service. (2)(a) The service shall have a junior scale and a senior scale (b) The junior scale shall have two grades, namely: - (i) Time Scale grade (Grade II); and (ii) Selection scale grade (Grade I). (c) The posts in the time scale grade in the junior scale shall be civil posts Group Gazetted; all the other posts shall be civil posts Group ‘A’ , Gazetted. Rule 7(1): The recruitment of personnel in the junior time scale grade (Grade II) appointment by transfer on deputation or direct recruitment, if any, in the senior scale be made by the Administrator on the recommendation of the High Court. (2) The promotion from one scale to another and from one grade to another shall be by the Administrator ’ on the recommendation of the High Court. (3) If no suitable candidate is available for promotion to posts vacant in the senior those posts shall be filled by transfer on deputation of judicial officers holding analogous posts in the State of Tamil Nadu, failing which through direct recruitment. Rule 8: (1) For initial recruitment to the service, the High Court shall recommend Administrator, suitable persons for appointment to the service from amongst the Officers and Legal Advisers to Government in service in the Union Territory of Pondicherry the time of commencement of these rules. (2) The High Court may at its discretion examine the character rolls and hold such tests as may be deemed fit. (3) The seniority of the candidates appointed at the initial constitution shall be in accordance with the length of service rendered by them in the cadre to which they belong at the their initial recruitment to the service provided that the inter se seniority as already such cadres shall not be altered. Rule 9: Regular recruitment: Recruitment after the initial recruitment shall be made direct recruitment from the Bar and also from services provided they are otherwise eligible by the Selection Committee. Rule 10: The Selection Committee shall consist of the following: (1) Chief Justice or Judge of the High Court deputed by him. (2) Chief Secretary, Pondicherry Administration, Pondicherry. (3) Secretary, Department, Pondicherry. Rule 10: The Selection Committee shall consist of the following: (1) Chief Justice or Judge of the High Court deputed by him. (2) Chief Secretary, Pondicherry Administration, Pondicherry. (3) Secretary, Department, Pondicherry. (4) Head of the Judicial Department, Pondicherry. Rule 11: (1) The qualification for direct recruits to the junior scale in the service shall be follows, namely: (a) must be a citizen of India; (b) must have practised as an advocate or must have held any post under the Central State Governments or Union Territory Administrations requiring knowledge of law, period of not less than three years; and (c) must be not more than 32 years of age on the first day of January of the year in his appointment is made. (2) The qualification for direct recruits to the senior scale in the service shall be as follows, namely: (a) must be a citizen of India; (b) must have practised as an advocate or must have held any post under the Central State Governments or Union Territory Administrations requiring special knowledge of law, a period of not less than ten years; and (c) must have attained the age of 35 years and not attained the age of 45 years on the day of January of the year in which his appointment is made. Rule 12: The High Court shall, before making recommendations to the Administrator, applications by advertisement and may require the applicants to give such particulars may prescribe and may further hold such tests as may be considered necessary. Rule 14: (1) Persons appointed to the service at the initial recruitment shall stand confirmed with effect from the date of appointment, (2) All other candidates on appointment to service shall be on probation for a period of two years. Rule 18: (1) The Administrator may create temporary posts in the service. (2) Such posts shall be filled in the same manner as permanent posts. Rule 19: Notwithstanding anything contained in these rules, the Administrator may, consultation with the High Court,; fill up any vacancy in the service by making temporary appointment thereto. Rule 26: Direct recruits will have to produce before appointment, a certificate of physical fitness in accordance with the standard prescribed for the Indian Administrative Service, shall pass during the period of probation such departmental examinations and undergo training as may be prescribed. Rule 26: Direct recruits will have to produce before appointment, a certificate of physical fitness in accordance with the standard prescribed for the Indian Administrative Service, shall pass during the period of probation such departmental examinations and undergo training as may be prescribed. Rule 30: Interpretation: If any question arises as to the interpretation of these rules, same shall be decided by the Administrator in consultation with the High Court. Rule 31: On the commencement of these rules, and until persons are appointed to cadre posts in accordance with the provisions of these rules, such posts may continue held by officers appointed thereto either before or after the commencement of these rules if these rules have not come into force. Rule 32: Power to relax: Where the Lieutenant Governor is of the opinion that it is or expedient so to do, he may, in consultation with the High Court, by order, for be recorded in writing, relax with prospective effect any of the provisions of these respect to any class or category of persons. 62. Rule 8 extracted above provides for initial recruitment and it prescribes that a be appointed under the said Rules should be (a) Judicial Officer, or (b) Legal Adviser Government in service in the Union Territory of Pondicherry at the time of commencement these rules. Rule 1(2) provides that the Rules shall come into force from the date publication in the Official Gazette. The Rules were published in the Official Gazette 23.1.1980 and it is that date, which is crucial for testing the qualification of the candidates. 63. It is seen from the counter affidavit of respondents 1, 2 and 4 that they admit Advisers to Government are those persons who hold the post of (a) Secretary Government, Law Department; (b) Deputy Secretary to Government, Law Department; Under Secretary to Government, Law Department; and (d) Officer on Special Department. On 23.1.1980, the date of commencement of the Rules, admittedly respondent Edward Kumar was only holding the post of Superintendent (Ad Department and he was appointed as an Officer on Special Duty (O.S.D.) (Codification) hoc) only on 7.3.1980, i.e., long after the commencement of the Rules. On 23.1.1980, the date of commencement of the Rules, admittedly respondent Edward Kumar was only holding the post of Superintendent (Ad Department and he was appointed as an Officer on Special Duty (O.S.D.) (Codification) hoc) only on 7.3.1980, i.e., long after the commencement of the Rules. Even as per the admission of respondents 1, 2 and 4, the 3rd respondent was Legal Adviser to Government on the crucial date viz., the date of commencement Rules, Hence, I am of the view, that the 3rd respondent was not qualified and eligible initial recruitment under the Rules viz., Rule 8. 64. In the counter affidavit filed on behalf of the 5th respondent, it is categorically that the 3rd respondent became a Legal Adviser only subsequent to his appointment junior scale (Grade II), Pondicherry Judicial Service. Therefore, his appointment to of junior scale (Grade II), Pondicherry Judicial Service was contrary to Rule 8 of the Rules, being ineligible and unqualified. It is stated in page 10 of the counter affidavit of respondents 1, 2 and 4 in W.P.No.3642 of 1992, that the 3rd respondent ’ s consent was obtained joining Pondicherry Judicial Service and thereafter his name was sent for initial recruitment. But it is seen from the file that his consent was obtained on 16.6.1984 only after selection by the committee in its meeting dated 7.1.1984 and the recommendation High Court dated 8.5.1984. 65. That apart, the post of Superintendent, Law Department, is a non-gazetted Group post as on 23.1.1980, viz., the date of commencement of the Rules, until it was upgraded Gazetted Group ‘ B ’ post in R.R. dated 18.9.1980, whereas the post of junior scale (Grade Pondicherry Judicial Service, is a Gazetted Group ‘ B ’ post. Therefore, the Superintendent, Law Department and the post of junior scale (Grade II), Pondicherry Service were not equal posts and hence, the appointment of the 3rd respondent as scale (Grade II), Pondicherry Judicial Service, would only mean that he was promoted posted in Pondicherry Judicial Service out of turn without adopting the procedure promotion, that too, in a different service, as rightly contended by Mr.G.Masilamani, Senior Counsel for the petitioners. The initial recruitment is not a recruitment made calling for application, by way of open competition selection, on merit, unlike recruitment under Rule 9 of the Rules. The initial recruitment is not a recruitment made calling for application, by way of open competition selection, on merit, unlike recruitment under Rule 9 of the Rules. Persons holding lower posts that too temporarily, cannot be appointed in higher posts by resorting to the method of initial recruitment Rule 8. Initial recruitment to a service is analogous to regularisation of, existing, officers, in the corresponding position, in the newly created service. Therefore, the relating to initial recruitment in the New Recruitment Rules cannot be pressed into service appoint a person holding a lower post temporarily in the Law Department in a higher the Pondicherry Judicial Service on a permanent basis as if Pondicherry Judicial Service inferior to the Law Department. 66. That apart, the appointment of the 3rd respondent to junior scale (Grade Pondicherry Judicial Service, also amounts to promoting him outside his department because he was holding a Degree in Law. The post of O.S.D. is the next higher post of Superintendent in the Law Department, which post was equivalent to the junior scale (Grade II), Pondicherry Judicial Service. For promotion to the post of O.S.D. per the recruitment rules, a candidate should possess a Degree in Law and three experience in the Law Department. The 3rd respondent was not even qualified for promotion as O.S.D. in the Law Department itself since he did not possess the required three experience in the feeder post on the crucial date viz. 23.1.1980 since he was appointed Superintendent only on 20.3.1978. As a matter of fact, even when the 3rd respondent actually promoted on a later date viz., on 8.3.1980 as O.S.D., even then he was not for that post and the said fact was also recorded in the files relating to his promotion qualified ” . A person, who was not even qualified for promotion even in his parent department was indirectly promoted and appointed to a higher post of junior scale (Grade Pondicherry Judicial Service, which was equal to the post of O.S.D. in the Law Department. This, in my view is clearly an improper and irregular recruitment. 67. A person, who was not even qualified for promotion even in his parent department was indirectly promoted and appointed to a higher post of junior scale (Grade Pondicherry Judicial Service, which was equal to the post of O.S.D. in the Law Department. This, in my view is clearly an improper and irregular recruitment. 67. The appointment of the 3rd respondent in the post of junior scale (Grade II), Pondicherry Judicial Service, by invoking Rule 8 is also bad since the initial recruitment was already by recruiting 16 seniormost Judicial Officers and one Legal Adviser to Government, then and the present Law Secretary to Government who is the deponent to the affidavit of respondents 1, 2 and 4. Hence, I am of the view that there can be only one recruitment to the service. Rule 2(g) defines “ initial recruitment ” as the first recruitment the service. There cannot be two first recruitments either simultaneously or one after another, in whatever name the subsequent recruitment is called either as supplemental or additional recruitment. If so done, there shall be no meaning for the existence of (g) and 8. 68. Rule 8 is a transitional provision. It works itself out as soon as the first recruitment over. Thereafter, Rule 8 even though continues in the statute book, shall cease effect, use and force for being invoked for the second or third time. Initial recruitment been made in respect of the entire sanctioned strength of the service (17 officers), cannot be a subsequent/second initial recruitment in respect of the same posts as and vacancies arise in the said post on account of retirement etc., of initially recruited officers. second initial recruitment is allowed, it would amount to double initial recruitment for post. Rule 8 cannot be used even for recruiting all the qualified and eligible persons available as on the date of commencement of the Rules, who were not included in the recruitment for whatever reason, by resorting to second and third initial recruitment, this is not the scope and object ’ of Rule 8. Rule 8 can be used only once to fill up sanctioned strength of the service from amongst the available and eligible officers. It be used to recruit all eligible officers (as on the date of commencement of the Rules) past, present and future vacancies as stated in the counter-affidavit of respondents 1, 4. Rule 8 can be used only once to fill up sanctioned strength of the service from amongst the available and eligible officers. It be used to recruit all eligible officers (as on the date of commencement of the Rules) past, present and future vacancies as stated in the counter-affidavit of respondents 1, 4. Even then, the 3rd respondent being ineligible and unqualified on the date of commencement of the Rules, cannot be recruited to the service even by way of second third initial recruitment. Hence, the appointment of the 3rd respondent as junior scale II) in Pondicherry Judicial Service shall be a clear violation of the mandatory requirement Rule 8 of the Rules. 69. Mr.R.Krishnamurthi, learned Senior Counsel appearing on behalf of the Union Territory Pondicherry, at the time of argument and before entering upon the questions in issue, out a few facts, which according to him, may be relevant for determining the questions arise for determination ‘ in these writ petitions. The facts and contentions set out by him as follows: "Pondicherry, which was a French Settlement in India, came to be merged in India with effect from 16.8.1962 and there after came to be the part of Union Territory of Pondich erry. The Parliament enacted a law called the Pondicherry Administration Act, 1962, provide for the Administration of the Union Territory of Pondicherry comprised of erstwhile French establishment at Pondicherry, Karaikkal, Mahe and Yanam. As per the Act, the jurisdiction of the Madras High Court was extended to Pondicherry in relation matters provided in the said Act. It was in 1966 that the Pondicherry Government enacted law called the Pondicherry Civil Courts Act, 1966 providing for the categories of courts Union Territory of Pondicherry and also providing that the appointments to the posts various categories of Judges shall be made in accordance with the rules framed Art.309 of the Constitution of India. The appointments to the various Judicial Officers were thus made in accordance with the rules issued under Art.309 of the Constitution India. During 1979, the Government of Pondicherry considered the question of constituting regular organised service for Judicial Officers in the Union Territory of Pondicherry. deliberations and consultations with the Madras High Court, the Pondicherry Judicial Rules, 1980, was made by a Government Order dated 10.1.1980. The same was notified the Gazette on 23.1.1980. During 1979, the Government of Pondicherry considered the question of constituting regular organised service for Judicial Officers in the Union Territory of Pondicherry. deliberations and consultations with the Madras High Court, the Pondicherry Judicial Rules, 1980, was made by a Government Order dated 10.1.1980. The same was notified the Gazette on 23.1.1980. Since the schedule to the rules was not correctly drawn up required extensive modification, an amendment to the rules was issued and notified 17.12.1980. As per the said rules, the Pondicherry Judicial Service was to comprise scales-senior scale and junior scale. The junior scale comprised of two grades, viz. and Grade II. The recruitment to the service was provided for in Rule 7 of the according to which recruitment of personnel in the junior scale (Grade II) was to be made the Administration the recommendations of the High Court. Rule 8 contemplates an recruitment to the service which has been defined in Rule 2(g), viz the first recruitment the commencement of the Rules. Rule 9 provides for recruitment after the initial recruitment from the Bar and the service. Accordingly, after the rules were notified and amended December, 1980, the Government of Pondicherry prepared a list of eligible and suitable persons as on 17.12.1980 for consideration for appointment under Rule. 8 of the Rules. list of persons included all the Judicial Officers who were in service as on 17.12.1980, were appointed under the earlier Rules (which included the other respondents in W.P.No. 14035 of 1992), and also the Legal Advisers of the Government of Pondicherry in service on 17.12.1980, which included Edward Kumar, who was holding the post of Officer Special Duty in the Law Department. The High Court considered the case of all such persons and taking into account the number of vacancies in Pondicherry Judicial Service, recommended the names of 17 persons for the 17 vacancies for appointment under Rule of the Rules. It may be stated that though the 3rd respondent and the other respondents W.P.No.14035 of 1992 were qualified for appointment at the initial recruitment to service, they were not appointed for want of vacancies. Based on the recommendations, Administration passed orders appointing the 17 persons by order dated 25.7.1983 G.O.Ms.No.54. It may be noted that before the initial recruitment was made and orders issued on 25.7.1983, vacancies had arisen in various posts. Based on the recommendations, Administration passed orders appointing the 17 persons by order dated 25.7.1983 G.O.Ms.No.54. It may be noted that before the initial recruitment was made and orders issued on 25.7.1983, vacancies had arisen in various posts. Taking note of the fact that regular recruitment could be made before the initial recruitment under Rule 8, Government initiated action and passed orders appointing four persons in June, temporarily as District Munsifs under Rule 31 of the Rules. Since the initial recruitment was made nearly three years after the Rules, vacancies had arisen in the meanwhile. Government, taking note of the fact that there had been six left out officers, who eligible to be recruited under Rule 8, and also four of the later entrants, who were appointed temporarily, recommended their names numbering ten for appointment under the Rules. ten officers comprised of four Judicial Officers who were in service as on 17.12.1980 but were not appointed under Rule 8 for want of vacancies, two Legal Officers including the respondent Edward Kumar, who also could not be appointed under Rule 8 for want vacancy and four Judicial Officers appointed in June, 1983 under Rule 31 of the Rules before the initial recruitment As per the Rules, the first six officers could have been appointed Rule 8, but were not appointed for want of vacancies. There were four other Judicial Officers appointed in the meanwhile who were in service at the time of initial recruitment. Therefore, their cases were submitted for consideration for appointment under the Rules. The cases were considered by following the procedure contemplated under Rule 9 of the Selection Committee contemplated under Rule 10 considered their cases, who suitable for recruitment under Rule 9 and found eligible. The High Court considered cases along with the views of the Selection Committee and recommended the names of candidates for appointment under the Rules. Based on the said recommendations, Administrator had issued two orders. The first is G.O.MS. No. 31, dated 2.7.1984 appointing five persons including the 3rd respondent Edward Kumar to the post of Judicial Officers, junior scale (Grade II). Based on the said recommendations, Administrator had issued two orders. The first is G.O.MS. No. 31, dated 2.7.1984 appointing five persons including the 3rd respondent Edward Kumar to the post of Judicial Officers, junior scale (Grade II). The said five persons comprise of four judicial officers, who appointed prior to the Rules under the old Rules and who could not be accommodated the original order dated 25.7.1983, and the 3rd respondent Edward Kumar, who was eligible but could not be appointed under Rule 8 under the order dated 25.7.1983. another order of the same day, G.O.Ms.No.32, dated 2.7.1984, four other persons been appointed under Rule 19 on a temporary basis. These persons comprise of the persons who were appointed in June, 1983, under Rule 31 of the Rules, pending recruitment for various vacancies. 70. Thus, it is argued by Mr.R.Krishnamurthi, learned Senior Counsel for the contesting respondents, that from the facts stated above, that the five officers appointed G.O.Ms.No31, dated 2.7.1984 were eligible to be appointed under Rule 8 of the Rules, could not be appointed for want of vacancy and therefore were termed by the respondents in ’ the files as supplementary to the initial recruitment. But, it would be seen that they been appointed following the procedure under Rule 9 of the Rules, they being fully qualified and eligible under the said Rules. The 3rd respondent Edward Kumar, who was appointed junior scale (Grade II) in the Pondicherry Judicial Service, was holding the post of officer Special Duty at that time and he was allowed to continue in the post. Later on, the cases all the officers including the 3rd respondent were considered for promotion to the post of junior scale (Grade I), Pondicherry Judicial Service, and by order dated 27.2.1992, they were promoted to junior scale (Grade I), Pondicherry Judicial Service at that stage the three writ petitions have been filed questioning both the orders dated 2.7.1984 and 27.2.1982. 71. 71. As regards the contention of Mr.G.Masilamani, that the order dated 2.7.1984 appointing the 3rd respondent and others to junior scale (Grade II), Pondicherry Judicial Service cannot be justified under Rule 8 of the Rules nor is it valid in terms of Rule 9 of the Rules and challenge relating to the validity of the order dated 27.2.1992 promoting the 3rd respondent to junior scale (Grade I)of the Pondicherry Judicial Service on various grounds, Mr.R.Krishnamurthi, submits as follows: According to him, the order dated 2.7.1984 appointing the 3rd respondent and others as junior scale (Grade II) of the Pondicherry Judicial Service, could be well justified under Rule 9 of the Rules. The only alleged deficiency and requirement said to be wanting in the matter of recruitment under Rule 9 of the Rules relation to these candidates is that an advertisement had not been made as contemplated Rule 12 of the Rules. It is stated that the 3rd respondent and others were fully qualified to appointed as junior scale (Grade II), Pondicherry Judicial Service, under Rule 9 of the Rules and that they have been duly considered by the Selection Committee and recommended the High Court as contemplated by the Rules. Mr.R.Krishnamurthi, learned Senior Counsel appearing for the contesting respondents, drew my attention to Pile No.1, that consideration for appointment in 1983-84 has been confined to the in-service candidates that too in respect of persons who are eligible to be appointed but could not be appointed under Rule 8 of the Rules for want of vacancies. In these circumstances, Mr.R.Krishnamurthi, submits that the requirement of advertisement might have been considered unnecessary the High Court. According to him, the word ‘ shall ’ in Rule 12 has to be read as enable a discretion in the High Court to meet such contingencies, and to hold otherwise would be to render an exercise to be made without any purpose in a given situation like present one. He also refers to the decisions reported in M/s.Rubber House v. M/s. Excellsior Needle Industries Private Limited, A.I.R. 1989 S.C. 1160: (1989)1 J.T. 488 : 1988 H.R.R. 193: (1989)2 S.C.C. 413 : (1989)45 Punj.L.R. 584 and State of Madhya Pradesh v. M/s. Azad Bharat Finance Co., 1967 M.L.J. (Crl.) 439: (1966)2 S.C A. 336:1967 Crl. L.J. 285:1967 M.P.LJ. 14: (1967)2 S.C.W.R. 1111:1967 S.C.D. 29: 1967 Jab.L.J. 153: 9 Law Rep. L.J. 285:1967 M.P.LJ. 14: (1967)2 S.C.W.R. 1111:1967 S.C.D. 29: 1967 Jab.L.J. 153: 9 Law Rep. 235: (1967)1 S.C.J. 815:1966 S.C.R. (Supp.) 473: A.I.R. 1967 S.C. 276, to show that the word ‘ shall ’ in Rule 12 can be read ‘ may ’ in the context. 72. Even otherwise, according to Mr.R. Krishnamurthi, in view of Rule 32 of the Rules, which enables the Administrator to relax the Rules, and having regard to the fact that the entire exercise has been approved by the Administrator after the High Court had recommended, can be taken that the requirement of Rule 12 of the Rules had been relaxed. Therefore, learned Senior Counsel submits that the appointment of the 3rd respondent and cannot be invalidated on the ground of non-compliance with the advertise; ment as under Rule 12 of the Rules. 73. According to Mr.G.Masilamani, learned Senior Counsel for the petitioners, respondent was overaged as on the date of the commencement of the Rules viz. since he was aged about 40 years in 1980. As per the unamended Rule 11(3), the was 32 years. This Rule 11(3) was amended on 3.11.1983 by inserting an explanation exempting the service candidates from age qualification. Therefore, the 3rd respondent unqualified even for regular appointment. It is because of that the 3rd respondent recruitment is sought to be sustained under Rule 8 (initial recruitment), which contain age qualification. Mr.G.Masilamani, further contends that the promotion of respondent from junior scale (Grade II) to junior scale (Grade I) is bad in law following reasons: (a) As the appointment of the 3rd respondent in the post of junior scale (Grade II) any promotion made there from is also equally bad and hence, is liable to be set aside. (b) The post of junior scale (Grade I) is a promotional post from junior scale (Grade based on merit-cum-seniority. It is an admitted case that the 3rd respondent had not even a single day as a Judicial Officer in the junior scale (Grade II) and hence, his in reality is a direct recruitment to junior scale (Grade I) contrary to the Rules. (c) Rule 7(2) provides that promotion from one grade to. another shall be made on recommendations of the High Court. Recommendation necessarily involves assessment of the merit and suitability of the candidate for the higher promotional taking into consideration the past service in the feeder post. (c) Rule 7(2) provides that promotion from one grade to. another shall be made on recommendations of the High Court. Recommendation necessarily involves assessment of the merit and suitability of the candidate for the higher promotional taking into consideration the past service in the feeder post. If a candidate for reason had not served at all in the lower feeder post, there shall be nothing or no available in the service record of the candidate to enable the recommending authority consider and assess the merit and suitability of the candidate to the higher post recommendation as required under the Rules. Recommendation of the High Court promotion from junior scale (Grade II) to Grade I, Pondicherry Judicial .Service was only by scrutinising the relevant service record of eligible candidates. Hence, according Mr.G.Masilamani, the recommendation, if any, made by the High Court for promotion 3rd respondent without any matterial whatsoever in the post of junior scale (Graded shall be clearly improper, irregular and sanitary to the requirement of the Rules in and spirit. Therefore, he contends that the promotion of the 3rd respondent to junior (Grade I) cannot be sustained. According to him, the experience, if any, of respondent in the post of O.S.D., Under Secretary and Deputy Secretary to Government, Law Department, shall not constitute as relevant materials for consideration promotion from the post of junior scale (Grade II) to the post of junior scale (OradeI) Pondicherry Judicial Service because the experience in those posts are irrelevant immaterial for the post of junior scale (Grade J). 74. Mr.G.Masilamani, further submits that the promotion of the 3rd respondent to of junior scale (Grade I) cannot be sustained since he had ‘ Nil “ experience and hence, merit in the post of junior scale (Grade II). He then submits that promotion and inter se seniority in the promotional post should be done on the comparative merit candidates. The 3rd respondent having had ‘ Nil ’ merit in the post of junior scale (Grade he could not have been compared with other candidates in the post of junior scale for promotion and fixation of seniority inter se. Therefore, according to Mr.G.Masilamani, comparison of the 3rd respondent with other candidates for promotion is clearly and violative of Art. 14 of the Constitution of India since unequals cannot be compared equals and decision arrived at. Therefore, according to Mr.G.Masilamani, comparison of the 3rd respondent with other candidates for promotion is clearly and violative of Art. 14 of the Constitution of India since unequals cannot be compared equals and decision arrived at. According to him, the service in the Judicial Department the service in the executive-Law Department, cannot be compared at all to arrive relative merits of the candidates. 75. In answering the contentions of Mr.G.Masilamani, relating to the validity of dated 2.7.1984 that the 3rd respondent was not a legal adviser and not qualified appointed under the Rules and that he was oyer aged for appointment in the/Rules, Mr.R.Krishnamurthi, learned Senior Counsel, submits that the above contentions of Mr.G.Masilamani are incorrect and untenable. According to him, the 3rd respondent possessed the necessary qualifications for appointment as a junior scale (Grade under Rule 9 of the . Rules. He was also qualified for appointment under Rule 8 of as op 17.12.1980, which was the crucial date for the purpose of appointment under the Rules, as it was on the said date that the Schedule to the Rules was amended. regard to the fact, that the Rules could be operated on the basis of the post enumerated lathe Schedule and the further fact that the Schedule to the Rales was found to be incorrect which required amendment and it was amended only on 17.12.1980, the date was construed only as 17.12.1980 by the High Court as well as the Government Pondicherry. 76. In support of his contention Mr. R. Krishnamurthi, refers to File No.1 which according him, would go to support the above proposition. That apart, the contention relating qualification is also without substance as the rule relating to age had been amended November, 1983, and the appointment under Rule 9 of the Rules was made 2.7,1984. Therefore, Mr.R.Krishnaniurthi, learned Senior Counsel, submits contention of Mr.G.Masilamani, that the 3rd respondent did not possess the qualification was overaged is without substance. In regard to the other contention raised Mr.G.Masilamani relating to the validity of the appointment dated 2.7.1984 and order of promotion dated 27.2.1992, viz., those orders are violative of basic structure Constitution of India, Mr.R.Krishnamurthi submits that they are not violative of the Constitution of India. According to him, the post in junior scale (Grade of the Pondicherry Judicial Service is on the lower rung of the Judicial Service. According to him, the post in junior scale (Grade of the Pondicherry Judicial Service is on the lower rung of the Judicial Service. The contemplate the appointment of an advocate as well as a member of a service holding necessary law qualification to be appointed to the said post. As a matter of fact, every including Tamil Nadu have got rules which enable members from the services having qualification to be appointed to the post of District Munsif-cum-Magistrate. According learned Senior Counsel Mr.R.Krishnamurthi, neither Art.50 of the Constitution nor decisions referred to by the petitioners would invali-date either the said Rules or provisions enabling a service candidate having a law qualification to be appointed to posts like Munsifs or Magistrates. In the circumstances, the learned Senior Counsel submits that contention of the petitioners ’ learned Senior Counsel in this regard are also without basis. 77. The other contentions raised by the petitioners in relation to the validity of the dated 2.7.1984, are that the sane cannot be justified under Rule 8 of the Rules as according to him, the said rule contemplates only one initial recruitment and not successive orders initial recruitment. While it may be possible to contend to the contra, it is submitted that said question need not be gone into as the impugned order dated 2.7.1984 could be justified under Rule 9 of the Rules. According to Mr.R.Krishnamurthi, the entire process of selection and appointment contemplated by Rule 9 has been followed excepting advertisement circumstances, the order dated 2.7.1984 cannot be said to be illegal or irregular. 78. As regards the challenge relating to the order dated 27.2.1992 promoting the respondent and others from junior scale (Grade II) to junior scale (Grade I) Pondicherry Judicial Service, the following are the submissions made by the contesting respondents. The 3rd respondent had been appointed to junior scale (Grade II) on 2.7.1984. It is not open to the petitioners to question the validity of his appointment as junior (Grade II)-officer at this stage while seeking to challenge his promotion dated, 27.2.1992. this context, my attention was invited to the decisions reported in Narendra Chadha v. of India, A.I.R. 1986 S.C. 638:1986 Lob.I.C. 590: (1986)2 S.C.C. 157 : (1986)1 S.C.J. (1986)1 Ser.L.J. 287: (1986)1 Lab.L.N. 665 and A.I.R. 1917 P.C. 142. Therefore, learned Senior Counsel for the contesting respondents submits that the contention petitioners deserves to be rejected. 79. this context, my attention was invited to the decisions reported in Narendra Chadha v. of India, A.I.R. 1986 S.C. 638:1986 Lob.I.C. 590: (1986)2 S.C.C. 157 : (1986)1 S.C.J. (1986)1 Ser.L.J. 287: (1986)1 Lab.L.N. 665 and A.I.R. 1917 P.C. 142. Therefore, learned Senior Counsel for the contesting respondents submits that the contention petitioners deserves to be rejected. 79. I am unable to give my seal of approval to the argument of Mr.R.Krishnamurthi, Senior Counsel, that the 3rd respondent was qualified for appointment under Rule 8 Rules as on 17.12.1980 which was the crucial date of appointment under Rule 8 of the as it was on the said date that the Schedule to the Rules was amended. Rule l(2) Rules says that the Rules shall come into force from the date of publication in the Gazette, i.e., from 23.1.1980. The abovesaid rule has categorically fixed the date of into force of the Pondicherry Judicial Service Rules, 1980, as the date of publication Official Gazette. The Rules do not anywhere state that the commencement of the would get postponed each time an amendment to the Rules is made and it is that publication of the amended rule which would be reasoned as the date on which the came into force and not the date of publication of the original amended Rules. Hence, amendment to the Schedule published on 17.12.1980 cannot said to have postponed date of commencement of the Rules to that date as that goes contrary to the above The postponement of the date of commencement of the Rules could be made only specific amendment made in accordance with Art.234 of the Constitution of India and interpretation of the Rules to suit the convenience, that too, contrary to a specific rule fixes the date for coming into force of the Rules. 80. I have also perused File No.1 (File No.42-8/80- ‘ LLD) produced by the Government Pondicherry. It is mentioned therein that the Pondicherry Judicial Service Rules, 1980, approved by the Government of India have been notified in the Extraordinary Gazette, Pondicherry dated 23.1.1980 and as per these rules, the High Court has to recommend the Administrator of Pondicherry suitable persons from amongst the Judicial Officers Legal Advisers to Government in service in the Union Territory of Pondicherry, for recruitment to the service. The letter dated 28.7.1980 in D.O.No.42-8-80-LLD sent by A.Chandrasekhara Menon, Secretary to Government, Law and Labour Department, Government of Pondicherry to Dr.David Annoussamy, Chief Judge, Pondicherry (as he then was) can be usefully referred to in this context for two purposes viz., (1) to notice that Pondicherry Judicial Service Rules, 1980, came into force with effect from 23.1.1980 and that the initial constitution of the service should be made in pursuance of Rule, 8 of Rules. It runs thus: “Dear Dr.David Annoussamy, As you are aware the Pondicherry Judicial Service Rules, 1980, have come into force effect from 23rd January, 1980. The initial constitution of the service should be made pursuance of Rule 8 of the Rules and necessary particulars for the purpose have furnished to the High Court for making their recommendations, for the initial recruitment, am to point out that the initial recruitment to the service should be made inter alia among the Judicial Officers in service in the Union Territory of Pondicherry at the time commencement of the above Rules. I am, therefore, to request that the particulars of and all eligible Judicial Officers may kindly be furnished in triplicate in the pro enclosed. The service cards of the officers and their up to date character rolls may also be sent early as possible. With regards, Yours Sincerely, (Sd.) A.Chandrasekhara Menon.” 81. As contended by MrR-Krishnamurthi, learned Senior Counsel for the contesting respondents, if the date of commencement of the Rules is postponed to the date amendment of the Rules, it shall cause uncertainty and absurd results. Further, acts prior to the amendment of the Rules would become irregular and even illegal if the date commencement of the Rules is reckoned from the date of the amendment. By no stretch imagination an interpretation can be made rendering the date of commencement of Rules as an uncertain and fluctuating one. Further, the date of commencement of a should be a definite one because the date of commencement shall be the date on which qualification and eligibility shall be determined. The Rules under consideration are one under Art.309 read with Art.234 of the Constitution of India and the same cannot changed by the Government of Pondicherry and the High Court in their administrative jurisdiction. Therefore, the date of commencement of the Rules shall only be 23.1.1980 not any other later date. The Rules under consideration are one under Art.309 read with Art.234 of the Constitution of India and the same cannot changed by the Government of Pondicherry and the High Court in their administrative jurisdiction. Therefore, the date of commencement of the Rules shall only be 23.1.1980 not any other later date. I am, therefore, of the view, that the 3rd respondent was qualified for recruitment under Rule 8 of the Rules and I reject the submissions made Mr.R.Krishnamurthi, learned Senior Counsel for the contesting respondents in this regard and accept the arguments of Mr.G.Masilamani, learned Senior Counsel appearing for petitioners. 82. It is relevant at this stage to refer to the bio-data and service particulars of the respondent Edward Kumar, which are available in the records produced by the Government of Pondicherry, as follows: 8.9.1939 Date of Birth 2.5.1962 to 21.3.1967 Worked as Assistant (Secretariat) - Non-gazetted in the Government of Pondicherry 23.3.1967 to 22.5.1968 Worked as Junior Superintendent (Secretariat) non-gazetted. 31.5.1968 to 26.8.1970 Worked as Assistant (Secretariat) non-gazetted. 27.8.1970 to 19.3.1978 Worked as Sub Registrar. 1975 Passed the Law Degree 20.3.1978 Appointed as Superintendent to 6.3.1980 (Non-gazetted) in Law and Labour Department and was holding that post till 6.3.1980. The post of Superintendent was a non-gazetted Group ‘C’ post as per Recruitment Rules published in G.O.Ms.No.1- 98/68-LLD, dated 1.8.1968. It was upgraded as Group ‘ B ’ Gazetted post only under Recruitment Rules dated 18.9.1990. The qualification prescribed for appointment to the post of Superintendent, Law Department, was a minimum of three years experience in the Law Department. The 3rd respondent never worked in the Law Department prior to his appointment as Superintendent and hence not qualified and had no experience at all much less three years experience as on the date of his appointment to the post of Superintendent, Law Department on 20.3.1978. The appointment of the 3rd respondent as Superintendent, Law Department, was purely on ad hoc basis and he was regularised in the post only on 1.2.1981 and was placed on probation for two years. 1.2.1981 Date of regularisation and placing on probation. 7.3.1980 Appointed as Officer on Special Duty (Codification) (Adhoc), even before he was regularised in the feeder post of Superintendent, Law Department. The qualification for the appointment of O.S.D. was a minimum of three years experience as Superintendent, Law Department. 1.2.1981 Date of regularisation and placing on probation. 7.3.1980 Appointed as Officer on Special Duty (Codification) (Adhoc), even before he was regularised in the feeder post of Superintendent, Law Department. The qualification for the appointment of O.S.D. was a minimum of three years experience as Superintendent, Law Department. The 3rd respondent was not qualified as he had only two years experience as Superintendent. Hence, even while making the appointment as O.S.D. it was mentioned in the file as "not qualified’ . The post of O.S.D. was assigned to the 3rd respondent with the duty of Codification of Statutes (Not giving legal advice). In reply to a question raised by the High Court Registrar as to who were the "Legal Advisers" the Government of Pondicherry replied on 4.3.1982 stating that the following Gazetted Officers are competent to give legal advice. 1. Law Secretary Rs.1,500,2000 2. Deputy Secretary Rs.1,100-1,600 3. Under Secretary Rs.840-1,200 4. Officer on Special Duty Rs.650-1,200 The post of Superintendent, Law Department was not one among the Legal Advisers. 3rd respondent was appointed as Legal Adviser only after the publication of the Rules. 16.6.1984 Government of Pondicherry issued a memo to 83. A bare look into the bio-data of the 3rd respondent shows that all the offices listed bio-data and the service particulars are neither judicial nor part of any judicial service, are appointments under the control of the executive. It is also not disputed that respondent never acted in any judicial office prior to his appointment as Special Officer Additional Subordinate Judge. I, therefore, agree with Mr.G.Masilamani, learned Counsel for the petitioners, that the 3rd respondent is not qualified for appointment scale (Grade II), Pondicherry Judicial Service and later promoted to junior-scale (Grade the Pondicherry Judicial Service. Needless to state that the independence, efficiency integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution of India. The above objectives the 3rd respondent calling for option to join the Pondicherry Judicial Service. The same was received by the 3rd respondent only on 17.6.1984. 16.6.1984 Letter of option sent by the 3rd respondent to join the Pondicherry Judicial Service. 7.1.1984 Minutes of the Selection Committee held at Rajnivas in which the 3rd respondent was selected. 8.5.1984 High Court, Madras, communication approving the selection and recommending the appointment of the 3rd respondent to Pondicherry Judicial Service. 16.6.1984 Letter of option sent by the 3rd respondent to join the Pondicherry Judicial Service. 7.1.1984 Minutes of the Selection Committee held at Rajnivas in which the 3rd respondent was selected. 8.5.1984 High Court, Madras, communication approving the selection and recommending the appointment of the 3rd respondent to Pondicherry Judicial Service. The same was made on 8.5.1984 even before the 3rd respondent gave his consent, which was on 16.6; 1984 to join the Pondicherry Judicial Service. 1985 Deputed for training in Legislative Drafting in Government of India. 27.7.1988 Promoted and appointed as Under Secretary to Government, Law Department. 18.11.1991 Promoted and appointed as Deputy Secretary to Government, Law Department. 27.2.1992 Promoted and appointed as Junior Scale Grade I, Pondicherry Judicial Service as Special Officer-cum- Additional Subordinate Judge. 28.2.1992 3rd respondent assumed charge. 11.3.1992 Writ petition filed questioning the appointment of the 3rd respondent to the Pondicherry Judicial Service under the Constitution cannot be achieved unless the functionaries accountable for appointments; act with meticulous care and utmost responsibility. 84. Regarding the submission of Mr.R. Krishnamurthi, that the appointment of the respondent could be sustained under Rule 9 of the Rules, I am of the view that the contention also cannot be countenanced for the following reasons. The 3rd respondent name was taken up for consideration to the post of junior scale (Grade II), Pondicherry Judicial Service, as early as 2.9.1982, as could be seen from pages 10 and 11 of File Rule 11 of the Rules as it originally stood and after its amendment runs as follows: 85. The qualification prescribed under Rule 11(2) of the Rules as it stood till the amendment of the said Rules on 27.11.1983, was that a person should be practising as an Advocate India or a person qualified to be admitted as an Advocate under the Advocates ’ The 3rd respondent was employed in the Government of Pondicherry. Hence, he was neither a practising advocate nor was he eligible to be admitted as an advocate as per Rule 49, VI, Chapter II, Section 7 of the Bar Council of India Rules. Under the said Rule, a full employee cannot enroll himself as an advocate. However, the name of the 3rd respondent was approved for appointment by the Selection Committee and his appointment was notified in the Gazette of Pondicherry. Under the said Rule, a full employee cannot enroll himself as an advocate. However, the name of the 3rd respondent was approved for appointment by the Selection Committee and his appointment was notified in the Gazette of Pondicherry. It is ununderstand able as to how the Department, Government of Pondicherry, initiated the name of the 3rd respondent appointment to the post of junior scale (Grade II) as early as September, 1982 when he not qualified at all under Rule 11 (2) of the Rules as then existed. Similarly, as September, 1982, he was aged 42 years, which is a disqualification as per Rule 11(3) of unamended Rules which fixes the age limit as 32 years. The service candidates exempted from age qualification only by insertion of an Explanation clause by amendment Rule 11 published in the Gazette on 27.11.1983. 86. As per the 1983 amendment of Rule 11 of the Rules, advocates and persons in service under Central, Stale or Union Territory Administrations stand or equal footing. Hence, regular appointment under Rule 9 read with Rules 11 and 12 of the Rules, a person in Government service cannot be handpicked and considered without resorting to Rule 12. Any such selection shall be wholly violative of not only of the Rules, but also Arts. 14 and 16 of the Constitution of India. Equality of opportunity public employment and guarantee against discrimination are constitutional rights cannot be violated by the Government, much less by the High Court, be it administrative or judicial jurisdiction. Hence, the submission made by Mr.R.Krishna learned Senior Counsel on behalf of respondents 1, 2 and 4 that the appointment of respondent to the Pondicherry Judicial Service without following the requirements of the Rules was not bad in law, cannot be countenanced. 87. At this stage, it has to be borne in mind that the direct recruitment of Legal Advisers Government at the time of initial constitution, without calling for applications and conducting any test under Rule 8 of the Rules, cannot be imported into Rule 9 read Rules 11 and 12 of direct recruitment. Rule 8 of the Rules is a transitional one recruitment provision whereas Rule 9 read with Rules 11 and 12 are regular and permanent provisions. Rule 8 of the Rules is a transitional one recruitment provision whereas Rule 9 read with Rules 11 and 12 are regular and permanent provisions. The appointment of the 3rd respondent cannot, therefore, be sustained reading the word ‘ shall ’ in Rule 12 as ‘may ’ since, if done so, the said rule shall unconstitutional as one being violative of Arts.14 and 16 of the Constitution of India. 88. The contention of Mr.R.Krishnamurthi, learned Senior Counsel, in regard relaxation of Rule 12 of the Rules also cannot be sustained, since the appointment of respondent under Rule 9 cannot be sustained by implied relaxation of the Rules. It is accepted proposition of law that the provision for relaxation of the Rules shall be resorted sparingly only to avert and to thwart hardship and injustice to individuals by the enforcement of the Rules. Even then, such relaxation shall be made by the Administrator after consultation with the High Court and for the reasons recorded in writing therefore the case of the 3rd respondent, none of the aforesaid requirements was satisfied for the relaxation of the Rules. No injustice or hardship was sought to be averted in the case of the 3rd respondent by appointing him directly to the Pondicherry Judicial Service without recourse to the requirement of Rule 12. Similarly, the Lieutenant Governor neither had consulted the High Court nor had he passed any order relaxing the rules much less recording the reasons therefor. File No.1, paragraph 10 (page No.3)contains only the notes prepared by the Law Secretary. There is nothing suggest that proceedings were taken by the Lieutenant Governor for relaxing the rules consultation with the High Court. The mandatory requirements of the Rules have to strictly complied with by the Lieutenant Governor failing which such acts shall be arbitrary and discriminatory and consequently ultra vires Arts.14 and 16 of the Constitution of India. 89. With regard to the argument of Mr.R. Krishnamurthi, learned Senior Counsel, for the contesting respondents that Rule 31 has no application to the 3rd respondent, I am of the view that Rule 31 is a transitional provision. Till such time persons are appointed to cadre posts as per the provisions of the recruitment rules, the said posts were allowed to be held by persons who were appointed to the cadre posts either before or after the commencement of the Rules. Till such time persons are appointed to cadre posts as per the provisions of the recruitment rules, the said posts were allowed to be held by persons who were appointed to the cadre posts either before or after the commencement of the Rules. This rule had been enacted taking into consideration the delay involved in the regular selection and posting of Judicial Officers as per the procedure provided under the Rules and also the necessity to man the said posts till then as it would be inadvisable keep the judicial posts vacant. Rule 31 shall have no application in the case of the 3rd respondent since he was never holding any cadre post in the Pondicherry Judicial Service. 90. In regard to the argument of Mr.R. Krishnamurthi, in respect of Rule 30, I am of the view that the said rule also will have no application to this case since at no point of time the Administrator (Lieutenant Governor) entertained any doubt as regards the interpretation these rules and hence, there was no occasion for him to decide any question as to the interpretation of the rules in consultation with the High Court. The files of the Government Pondicherry and the High Court, Madras, do not contain any material to suggest the invoking of Rule 30 at any point of time. When the rule is clear, there can be no decision as to meaning. 91. At the time of argument Mr.G.Masilamani, learned Senior Counsel for the petitioners while questioning the validity of the impugned orders submitted that the 3rd respondent has not served in any judicial post, viz. junior scale (Grade II) of the Pondicherry Judicial Service even for a single day and therefore, there was no to consider his case on merit in an objective manner in respect of the lower feeder In answering this Mr.R.Krishnamurthi, learned Senior Counsel appearing on behalf contesting respondents, submits that the above contention is misconceived and the scope of the Rules. As per Rule 5(1), the appointment to the Pondicherry Judicial is to be made to the corresponding scale and grade and not against any specified post. 7(2) deals with promotion from one scale to another and from one grade to another. (d) of the Rules defines a ‘ member of the service ’ to mean, a person appointed substantive capacity to either scale of the service. 7(2) deals with promotion from one scale to another and from one grade to another. (d) of the Rules defines a ‘ member of the service ’ to mean, a person appointed substantive capacity to either scale of the service. The 3rd respondent was appointed junior scale (Grade II) officer without prejudice to his continuing officiation as Officer Special Duty on 2.7.1984. Therefore, according to Mr.R. Krish-namurthi, the 3rd respondent cannot be said to be a person not belonging to junior scale (Grade II) of the Pondicherry Judicial Service so as to disentitle him for promotion. Further, he submitted that his has been assessed by the High Court as well as by the Government of Pondicherry and promotion was based, on the recommendations made by the High Court as required the Rules. In this view, Mr.R.Krishnamurthi submits that the contention of the petitioners this regard deserves to be rejected. 92. At the time of hearing, I also raised a query as to whether the Government Pondicherry has any record to show that the 3rd respondent has assumed charge as scale (Grade II) officer in the Pondicherry Judicial Service, to which MnR.Krishnamurthi, learned Senior Counsel appearing for the Government of Pondicherry fairly concedes that Government has no record to show that he has assumed office as junior scale (Grade officer in the Pondicherry Judicial Service. 93. To my further query that when the 3rd respondent had not assumed office in any the posts in junior scale (Grade II) of the Pondicherry Judicial Service pursuant to the of appointment dated 2.7.1984, how he could be said to have been effectively appointed the Pondicherry Judicial Service so as to enable him to be promoted to junior scale (Grade post in the Pondicherry Judicial Service, Mr.R.Krishnamurthi, learned Senior Counsel submits as follows: The Pondicherry Judicial Service contemplates appointment to the service in the respective scale or grade and not to any post in the said service. The 3rd respondent, like others, been appointed to the service to the corresponding scale and grade. That would take notwithstanding that there is no appointment or officiation in a particular post borne Pondicherry Judicial Service. Therefore, he submits, that it cannot be said that the respondent was not a member of the service as junior scale (Grade II) officer. The 3rd respondent, like others, been appointed to the service to the corresponding scale and grade. That would take notwithstanding that there is no appointment or officiation in a particular post borne Pondicherry Judicial Service. Therefore, he submits, that it cannot be said that the respondent was not a member of the service as junior scale (Grade II) officer. Secondly, contends that it is permissible for a person to be appointed to a particular scale or grade particular service, notwithstanding the fact that he is holding another post and continues hold the said post without prejudice to his appointment. Thus, according to him, for foregoing reasons, the appointment, of the 3rd respondent as junior scale (Grade II) in the Pondicherry Judicial Service and his promotion as Grade I officer in the junior scale the Pondicherry Judicial Service cannot be said to be invalid or irregular and the petitions deserve to be dismissed. 94. I am unable to accept the said contention of Mr.R.Krishnamurthi. The 3rd respondent after his appointment to the Pondicherry Judicial Service did not join the service and failed to submit himself to the control of the High Court under Art.235 of the Constitution India. As a matter of fact, ‘ the 3rd respondent continued in the Law Department and enjoyed several promotions in that Department. The recitals in the appointment order 3rd respondent allowing him to continue in the Law Department were added by Government of Pondicherry. The High Court records do not disclose any order by the Court deputing the 3rd respondent to Law Department. It would be relevant to mention that Rule 24 says that a person appointed to the judicial post shall take oath of allegiance India and to the Constitution of India. As stated earlier, and as fairly conceded by Krishnamurthi, learned Senior Counsel for the contesting respondents, the 3rd respondent had not joined the Judicial Service and has not taken the oath of allegiance. Hence, I the view that a person who had not joined the service cannot claim seniority, promotion other benefits including implied relaxation in the said service. It means, the 3rd respondent after his work in the Law Department may join Pondicherry Judicial Service at a later date, never joined the Pondicherry Judicial Service. 95. Hence, I the view that a person who had not joined the service cannot claim seniority, promotion other benefits including implied relaxation in the said service. It means, the 3rd respondent after his work in the Law Department may join Pondicherry Judicial Service at a later date, never joined the Pondicherry Judicial Service. 95. The 3rd respondent’s promotion to junior scale (Grade I) of the Pondicherry Service, was also bad in my view since he was not placed on probation as required 14(2) of the Rules in the post of junior scale (Grade II) when all the others who appointed along with him were placed on probation. Therefore, the 3rd respondent be given a special, distinct and different treatment from others who came to be appointed along with him. Any such special treatment shall amount to unjust discrimination violative of Art. 14 of the Constitution besides being bad for bias in favour of respondent at the time of his appointment and also at the time of promotion. In view fact that the 3rd respondent is yet to be confirmed in the feeder category of junior (Grade II), he cannot be promoted on regular basis and appointed permanently in the post of junior scale (Grade I) of the Pondicherry Judicial Service. For this reason also, promotion of the 3rd respondent to junior scale (Grade I) of the Pondicherry Judicial cannot be sustained. 96. Rule 26 provides for imparting training to the appointees of junior (GradeII),Pondicherry Judicial Service. Since the 3rd respondent had not joined the junior scale (Grade II), he had not under gone training as required by the Rules. Hence, was not eligible to sit and dispose of cases as a Judicial Officer in junior scale. Further, not entitled to be confirmed in the post of junior scale (Grade II), since he undergone the training as required under the Rules. Therefore, he cannot be promoted the junior scale (Grade I) as he is not qualified even to be regularised in the post of scale (Grade II) for want of training. 97. Mr.R.Krishnamurthi, submits that the 3rd respondent has been dealt with in a manner, as alleged by the learned Senior Counsel for the petitioners, is incorrect. According to him, all the five persons who were appointed on 2.7.1984 were not placed on probation. As referred to already, since these persons were a class by themselves, viz. 97. Mr.R.Krishnamurthi, submits that the 3rd respondent has been dealt with in a manner, as alleged by the learned Senior Counsel for the petitioners, is incorrect. According to him, all the five persons who were appointed on 2.7.1984 were not placed on probation. As referred to already, since these persons were a class by themselves, viz. eligible to be appointed under Rule 8 but could not be appointed for want of vacancies, were considered and appointed under Rule 9 of the Rules in a substantive Therefore, Mr.R.Krishnamurthi submits, that the question of violation of Art. 14 Constitution does not arise. Further, Rule 14(2) of the Rules requires candidates appointment to the service shall be on probation for a period of two years. The maximum period of probation is two years in the service. Since no orders terminatingor extending probation had been made by the Government and the period had also expired long ago, would be deemed to be approved probationers in the junior scale (Grade II) Therefore, according to Mr.R.Krishnamurthi, the question of disabling the 3rd respondent the other four officers from being promoted on this ground would not arise. 98. I am unable to accept the above contention of Mr.R.Krishnamurthi. The 3rd respondent appointment order discloses that he was appointed under Rule 7(1) read with Rule 14 Rules which necessarily means that he was appointed under Rule 9 because it is only appointees under Rule 9 who are liable to undergo probation under Rule 14. Having an appointment order with a liability to undergo probation, the 3rd respondent cannot allowed to contend that he need not undergo probation. Equally, respondents 1, 2 having issued an appointment order to the 3rd respondent with a liability to probation cannot be allowed to contend suo motu that the 3rd respondent need not probation. Hence, I am of the view that the contesting respondents are estopped contending otherwise. 99. That apart, if the 3rd respondent had got himself relieved from the Law Department joined the Pondicherry Judicial Service, he would have been placed on probation. He take advantage of his failure to join the Pondicherry Judicial Service, as one exempting from one of the conditions of appointment which is also a mandatory requirement under Rules. 99. That apart, if the 3rd respondent had got himself relieved from the Law Department joined the Pondicherry Judicial Service, he would have been placed on probation. He take advantage of his failure to join the Pondicherry Judicial Service, as one exempting from one of the conditions of appointment which is also a mandatory requirement under Rules. It is apparent on the face of the records of the High Court and the Government, the 3rd respondent never made any efforts to get himself relieved from the Law Department to join the Pondicherry Judicial Service. Since the 3rd respondent had not joined Pondicherry Judicial Service, his probation cannot be deemed to have commenced completed. Perhaps, if he had joined the, Pondicherry Judicial Service and continued in the service, such a presumption may available on the ground that his services were not terminated even after three years the date of joining Pondicherry Judicial Service. 100. Much arguments were advanced on behalf of the contesting respondents stating the 3rd respondent was an ‘ in-service candidate’. For the purpose of Rule 9, the term service ’ would only mean, a person is in the employment of the State, Central or Territory Government requiring knowledge of law for a period of not less than three years Rule 11, such a person is put on par with a practising advocate having an experience three years at the Bar. Hence, for recruitment under Rule 9, the qualification prescribed under Rule 11 does not make any distinction between candidates, namely, a person service and a practising advocate. Therefore, a person in Government service cannot treated differently and considered separately and directly for recruitment under Rule leaving qualified advocates and also other persons in the service of Government (which include posts outside the Law Department also). Only if applications are called for, number of eligible candidates in either category will be known. 101. The argument of Mr.R.Krishnamurthi that the 3rd respondent being an in candidate, may be considered separately for recruitment without complying with procedure provided under Rule 12 cannot be sustained. If so done, it shall be a clear case abuse and colourable exercise of powers, besides being arbitrary and discriminatory consequently violative of Arts.14 and 16 of the Constitution of India. The argument of Mr.R.Krishnamurthi that the 3rd respondent being an in candidate, may be considered separately for recruitment without complying with procedure provided under Rule 12 cannot be sustained. If so done, it shall be a clear case abuse and colourable exercise of powers, besides being arbitrary and discriminatory consequently violative of Arts.14 and 16 of the Constitution of India. Hence, the argument the learned Senior Counsel appearing on behalf of the contesting respondents in support the recruitment of the 3rd respondent under Rule 9 of the Rules is not at all tenable. Perhaps, the other four Judicial Officers, who were inside the Judicial Service itself, stand on a different footing whereas the 3rd respondent, who was in the service of the Department outside the Judicial Service, neither can be compared with the other Judicial Officers nor can be equated along with them for justifying the appointment deal with this point in extenso when I consider W.P.No. 14035 of 1992. 102. Next, it was argued by Mr.R.Krishnamurthi, that the writ petitions are belated hence they should be dismissed on the ground of laches. Even though the 3rd respondent was selected to the post of junior scale (Grade II), Pondicherry Judicial Service, appointment was notified in the Gazette on 2.7.1984, he had not joined the service Judicial Officer for more than seven years and eight months and had not discharged function in any Court until he was promoted to the post of junior scale (Grade I), Pondicherry Judicial Service on 28.2.1992. Hence, the writ petition filed on 11.3.1992 immediately assumption of charge in the promoted post in the Pondicherry Judicial Service is not The writ petition, in my view, can be filed immediately after the assumption of office 3rd respondent. Since the 3rd respondent had not joined the service and assumed judicial post till 28.2.1992, the writ petition was not filed challenging his appointment same was filed as soon as he assumed charge of the office. Since the 3rd respondent had not joined the service and assumed judicial post till 28.2.1992, the writ petition was not filed challenging his appointment same was filed as soon as he assumed charge of the office. Hence, it is not hit by laches, could be seen from the decision of the Himachal Pradesh High Court reported in Ram v. Siri Chand, A.I.R. 1962 H.P. 19, where it has been held as follows: "Thus, unless a person occupies an office an inquiry into the validity of the authority occupation of that office cannot be made and the present petition so far as it relates issue of a writ in the nature of quo warranto cannot be said to have been filed inordinate delay." 103. Each day the 3rd respondent is in office it gives rise to fresh cause of action such, the writ petition is not hit by laches, as could be seen from the following decisions. The first decision is reported in Baij Nath Singh v. The State of Uttar A.I.R. 1965 All. 151, wherein it has been held as follows: "This petition cannot be dismissed on the ground of delay also. In Sonu Sampat Shewale Jalgaon Borough Municipality, I.L.R. 1958 Bom. 113, a Bench of the Bombay High Court as follows: "If the appointment of an officer is illegal, every day that hearts in that office a fresh action arises; there can, therefore, be no question of delay in presenting a petition for of quo warranto in which his very right to act in such a responsible post has been tioned." A similar relief is capable of being granted in the present case also and, therefore, the petition cannot be dismissed on the ground delay. “104. The second decision is reported in Dr.Het Ram Kalia v. Himachal Pradesh University, Simla, A.I.R. 1977 NOC. 246 (H.P.), wherein it has been observed as follows:” A writ of quo warranto is never issued as a matter of course and it is always within discretion of the Court to decide, after having considered the facts and circumstances of case, whether the petitioner concerned is the person who could be entrusted with such which is always issued only in the interest of the public in general. The Court may refuse grant a writ of quo warranto if it is vexatious or where the petitioner is guilty of laches, where he has acquiesced or concurred in the very act against which he complains or the motive of the relator is suspicious. “105. The third decision on this aspect is reported in Rashik Ch.Deb Burma v. Government of Tripura, A.I.R. 1976 Gau. 87, wherein it has been held by a Bench Gauhati High Court as follows: ” So far as delay is concerned, it is true that ordinarily this Court will not countenance inordinate delay in filing such writ petition. But as has been held in the decisions reported Baij Nath v. State of Uttar Pradesh, A.I.R. 1965 All. 151 and in S.B.Roy v. P.N.Banerjee, (1968) 72 C. W.N. 50, delay in presenting a petition for a writ of quo warranto, in right of a person to function in a certain capacity is challenged, cannot be a ground rejecting it. In such a case it was held, every day the person so acts in that capacity a cause of action arises. We are in respectful agreement with this view. In the instant the petitioner succeeds in establishing before us that the respondent No.2 has no jurisdiction to hold the post of Administrator, the delay in presenting the petition will not defeat cause. We accordingly proceed to examine the points which were urged before us learned counsel for the petitioner Mr.M-Majumder. “106. The delay in my view, is not an inviolable ’ rule. The relief granted shall depend circumstances of each case and the exigency of Rule of Law and primacy of Justice support of this submission, Mr.G.Masilamani, learned Senior Counsel for the petitioners on the following three decisions. The first is reported in Rama Chandra Shankar Deodhar The State of Maharashtra, A.I.R. 1974 S.C. 259: (1974)2 S.C.R. 216 : 1974 Lab.I.C 165:1974 S.C.C. (Lab.) 137: (1974)1 S.C.C. 317 : (1974)1 Ser.L.R. 470: (1974)1 Lab.LJ. 221. second decision is reported in DrJagannath Mishrav. State of Bihar, A.I.R. 1990Pat. 11 the third is reported in State of Madhya Pradesh v. NandlalJaiswal, A.I.R. 1987 S.C. Thus. I am of the view that no usurper can sustain his position on the ground of usurpation, that too, when public interest is affected. Public interest shall override individual inconvenience or injury. second decision is reported in DrJagannath Mishrav. State of Bihar, A.I.R. 1990Pat. 11 the third is reported in State of Madhya Pradesh v. NandlalJaiswal, A.I.R. 1987 S.C. Thus. I am of the view that no usurper can sustain his position on the ground of usurpation, that too, when public interest is affected. Public interest shall override individual inconvenience or injury. Standard of vigilance demanded from a party seeking remedy personal benefit as against another individual, cannot be bodily imported in cases instituted in general and public interest. As regards cases in which illegal acts affecting public is exposed, the principle to be applied shall be” better late than never “since Rule of Law majesty of justice shall prevail above all men-and matters. 107. The 3rd respondent entered the Government executive service on 2.5.1962 and been discharging his duties in the executive wing of the State for thirty years till he actually assumed judicial post as junior scale (Grade I) of the Pondicherry Judicial Service 28.2.1992. Art.50 of the Constitution of India requires the separation of judiciary from executive for valid and historical reasons. In this connection, the decision of the Supreme Court reported in The State of West Bengal v. Nripendra Nath Bagchi, A.I.R 1966 S.C. (1966)1 S.C.R 771 : (1965)2 S.C.A. 884: (1966)2 S.C.W.R. 169: (1966)2 S.C.J. 59:1966 S.C.D. 653, has been cited by the learned Senior Counsel for the petitioners. In circumstances, the 3rd respondent, who is essentially an executive officer, cannot promoted to discharge judicial functions violating the basic structure of the Constitution India, viz., the Rule of Law and the independence of judiciary. I may usefully refer following two decisions. 108. The first decision reported in S.P.Gupta v. President of India, A.I.R 1982 S.C. 1982 Rajdhani L.R. 389: 1982 S.C.C. (Supp.) 87, which is the famous Judges ’ transfer In that decision it has been held as follows: ” Having disposed of the preliminary objection in regard to locus standi of the petitioners, may now proceed to consider the questions which arise for determination in these petitions. The questions are of great constitutional significance affecting the principle independence of judiciary which is a basic feature of the Constitution and we would therefore prefer to begin the discussion by making a few prefactory remarks highlighting what the function of the judiciary should be in a country like India which is marching along the road social justice with the banner of democracy and the rule of law, for the principle independence of the judiciary is not an abstract conception, but it is a living faith which derive its inspiration from the constitutional character and its nourishment and sustenance from the constitutional values. It is necessary for every Judge to remember constantly continually that our Constitution is not a non-aligned rational charter. It is a document social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante new human order in which justice, social, economic and political will inform all institutions national life and there will be equality of status and opportunity for all. The judiciary therefore a socio-economic destination and a creative function. It has to use the words Glanville Austin, to become an arm of the socio-economic revolution and perform an role calculated to bring social justice within the reach of the common man. It cannot content to act merely as an umpire but it must be functionally involved in the goal of economic justice. The British concept of justicing, which to quote Justice Krishna Iyer, “hugged by the heirs of our colonial legal culture and shared by many on the Bench “the business of a Judge is to hold his tongue until the last possible moment and to try as wise as he is paid to look ” and in the same strain are the words quoted by Professor Gordon Reid from a memorandum to the Victorian Government by Irvin, C.J., in 1923 the judicial function was idealised in the following words: “The duty of His Majesty’ s Judges is to hear and determine issues of fact and of law between the king and the subject or between a subject and a subject presented in a enabling judgment to be passed upon them, and when passed, to be enforced by a process of law. There begins and ends of the function of the judiciary ’ . There begins and ends of the function of the judiciary ’ . Now this approach to the judicial function may be all right for a stable and static society, not for a society pulsating with urges of gender justice, worker justice, minorities dalit justice and equal justice between chronic unequals. Where the contest is between who are socially or economically unequal, the judicial process may prove disastrous from point of view of social justice, if the Judge adopts a merely passive or negative role and not adopt a positive and creative approach. The judiciary cannot remain a mere bystander spectator but it must become an active participant in the judicial process ready to use the service of social justice, through a pro-active goal oriented approach. But this cannot achieved unless we have judicial cadres who share the fighting faith of the Constitution who are imbued with the, constitutional values. The necessity of a judiciary which is in with the social philosophy of the Constitution has nowhere been better emphasized than the words of Justice Krishna Iyer which we quote:” Appointment of Judges is a serious process where judicial expertise, legal learning, experience and high integrity are components, but above all are two indispensables philosophy in active unison with the socialistic Articles of the Constitution and second, equally important, built-in resistance to pushes and pressures by class interests, prejudices, government threats and blandishments, party loyalties and contrary economic and political ideologies projecting into pronouncements. ‘ Justice Krishna Iyer goes on to say in his inimitable style: ‘Justice Cardozo approvingly quoted President Theodore Roosevelt ’ s stress on the philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, choice of Judges for the higher Courts which makes and declares the law of the land, must in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing. What is necessary is to have Judges who are prepared to fashion new tools, forge methods, innovate new strategies and evolve a new jurispru-dence, who are statesmen with a social vision and a creative faculty and who have, above all, a deep of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous the half hungry millions of India who are continually, denied their basic human rights need Judges who are alive to the socio-economic realities of Indian life, who are anxious wipe every tear from every eye, who have faith in the constitutional values and ready to use law as an instrument for achieving the constitutional objectives. This the broad blue-print of the appointment project for the higher echelons of judicial is only if appointments of Judge are made with these considerations weighing predominantly with the appointing authority that we can have a truly independent judiciary committed to the Constitution and to the people of India. The concept of independence of the judiciary a noble concept which inspires the constitutional scheme and constitutes the foundation which rests the edifice of our democratic polity. If there is one principle which runs the entire fabric of the Constitution, it is the principle of the rule of law and under Constitution, it is the judiciary which is entrusted with the task of keeping every organ State within the limits of the law and thereby making the rule of law meaningful effective. It is to aid the judiciary in this task that the power of judicial review conferred upon the judiciary and it is by exercising this power which constitutes one most potent weapons in armoury of the law, that the judiciary seeks to protect the against violation of his constitutional or legal rights or misuse of abuse of power by or its officers. The judiciary stands between the citizen and the Stale as a bulwark executive excesses and misuse or abuse of powers by the executive and therefore absolutely essential that the judiciary must be free from executive pressure or influence this has been secured by the Constitution makers by making elaborate provisions Constitution to which detailed reference has been made in the judgments in Union of Sankalchand Himatlal Sheth, A.I.R. 1977 S.C. 2328. But it is necessary to remind that the concept of independence of the judiciary is not limited only to independence executive pressure or influence but it is a much wider concept which takes within its independence from many other pressures and prejudices. It has many dimensions, fearlessness of other power centres, economic or political and freedom from prejudices acquired and nourished by the class to which the Judges belong. If we may again quote eloquent words of Justice Krishna Iyer: ‘ Independency of the judiciary is not genuflexion; nor is it opposition to every proposition Government. It is neither judiciary made to opposition measure nor Government’s pleasure. The tycoon, the communalist, the parochialist, the faddist, the extremist and reactionary lying coiled up and sub-consciously shap-ingjudicial mentations are menaces judicial independence when they are at variance with Parts III and IV of the Paramount Parchment ’ . Judges should be of stern stuff and tough fibre, unbending before economic or political, and they must uphold the core principle of the rule of law which“ Be you ever so high, the law is above you.” This is the principle of independence judiciary which is vital for the establishment of real participatory democracy, maintenance the rule of law as a dynamic concept and delivery of social justice to the vulnerable of the community. It is this principle of independence of the judiciary which we must mind while interpreting the relevant provisions of the Constitution. Can mandamus fixation of strength of Judges in a High Court; Art.216. “109. The second decision relates to the appointment of K.N.Srivastava as High Court reported in Kumar Padmc Prasad v. Union of India, A.I.R. 1992 S.C. 1213: (1992)2 (1992)2 S.C.C. 428 1992 A.I.R S.C.W. 103, wherein the Supreme Court has observed follows in paragraph 22 of the judgment:” We are of the view that holder of ‘judicial office’ under Art.217(2)(a) means the person exercises only judicial functions, determines causes inter-partes and renders decisions judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined the dignity, integrity and independence of judiciary." 110. The preamble to the Constitution provides evert at the outset, Justice, Social, and Political as its first objective. Justice can be ensured only through untrammelled judiciary, not only of higher judiciary, but also of lower judiciary, as has been held decision reported in The State of West Bengal v. Nripendra Nath Bagchi, A.I.R. 447: (1966)1 S.C.R. 771 : (1965)2 S.C.A.. 884: (1966)2 S.C.W.R. 169: (1966)2 59:1966 S.C.D. 653. If the 3rd respondent ’ s promotion from junior scale (Grade II) scale (Grade I) without a day ’ s experience in the lower post could be sustained, promotion from junior scale (Grade I) to senior scale (Grade II) and then to senior (Grade I) can also be sustained. In such an event, a person could be given appointment to a lowest post in the Judicial Service, viz. junior scale (Grade II) and to work indefinitely outside the Pondich-erry Judicial Service in the executive wing Government and one fine morning he could be promoted and appointed as the District Judge without any experience as Munsif and as Subordinate Judge. If analogy is extended, the said person even without working as a District Judge, on claim for consideration for appointment to the High Court. If such a thing is happen, it will be a travesty of independence of judiciary and dispensation of justice separation of judiciary from executive. 111. I am of the view that the quality of justice shall depend upon the quality of preside over the judiciary and hand down the judgments. Inducting into judiciary, particularly, subordinate higher judiciary, men from executive who have no proper and experience in judiciary, shall amount to denial of justice, which is a basic structure Constitution, as has been held by the Supreme Court in the famous Judges ’ transfer reported in S.P.Gupta v. President of India, A.I.R. 1982 S.C. 149: 1982 Rajdhani 1982 S.C.C. (Supp.) 87. In my opinion, every litigant is entitled to have his case judged qualified, trained and experienced judge and not by any other men. Denial of the same be violative of a citizen ’ s constitutional right to have real and proper justice. 112. In my opinion, every litigant is entitled to have his case judged qualified, trained and experienced judge and not by any other men. Denial of the same be violative of a citizen ’ s constitutional right to have real and proper justice. 112. Though the maintainability of the writ petitions and the locus standi of the to maintain the same were raised in the counter affidavit, no serious argument was on that issue. The present writ petitions filed on behalf of the Pondicherry Bar Association maintainable as the members of the Bar are aggrieved parties and have personal the independence of judiciary, rule of law and dispensation of justice, as has been in the above cited Judges ’ transfer case by the Supreme Court. Writ of certiorari, lie in this case since the petitioners individually and the Pondicherry Bar Association aggrieved persons as their interest and rights are affected inasmuch as the 3rd respondent appointment both to junior scale (Grade II) and junior scale (Grade I) of the Pondicherry Judicial Service were made even though he was not eligible and was not recruited accordance with Rules. Writ of quo warranto shall also issue in this case since respondent’s appointment to the post of junior scale (Grade II), Pondicherry Judicial and his subsequent promotion to junior scale (Grade I) were made in contravention Recruitment Rules as he was not eligible to those posts and the methods adopted and promote him were contrary to the Rules. 113. For the foregoing reasons, I hold that the approval of the name of the 3rd respondent Edward Kumar by the Selection Committee consisting of the then Chief Justice Hon K.B.N.Singh, Mr.R:Badrinath, I.A.S., Chief Secretary, Government of Pondicherry, Mr.A.Chandrasekara Menon, Secretary to Government, Law Department, Government Pondicherry and Dr.David Annoussami, Chief Judge and Head ’ of Judicial Department, Pondicherry (as he then was) is irregular for the reasons stated in this order. With respect, I have to hold that the approval of the name of the 3rd respondent Mr. Kumar by the Selection Committee is irregular and not in accordance with the Pondicherry Judicial Service Rules and also against the provisions of the Constitution of India. Hence, appointment of the 3rd respondent Edward Kumar to junior scale (Grade II) promotion to junior scale (Grade I) of the Pondicherry Judicial Service are liable aside. Accordingly, W.P.No.3642 of 1992 is ordered as prayed for. Hence, appointment of the 3rd respondent Edward Kumar to junior scale (Grade II) promotion to junior scale (Grade I) of the Pondicherry Judicial Service are liable aside. Accordingly, W.P.No.3642 of 1992 is ordered as prayed for. The impugned relating to the appointment of the 3rd respondent Edward Kumar alone in Order No.59/SPA/92-LD, dated 27.2.1992 and in G.O.Ms.No,31/84 LLD.dated 2.7.1984 on the file of the 4th respondent/The Secretary, Law Department, Government of Pondicherry, are quashed. However, there will be no order as to costs. 114. For the foregoing reasons, the 3rd respondent Edward Kumar has no authority to his appointment to the public office, viz. junior scale (Grade II) and junior scale (Grade the Pondicherry Judicial Service and perform the duties connected thereto and enjoy privileges relating therewith. Hence, W.P.No.9391 of 1992 is also ordered as prayed for a writ of quo warranto is issued against the 3rd respondent Edward Kumar and in favour the petitioner. However, there will be no order as to costs. 115. The third writ petition viz. W.P.No.14035 of, 1992 has been filed by a practising advocate for the issue of a writ of quo warranto directing respondents 2 to 6 to show under what authority they claim their appointment in junior scale (Grade II) and junior (Grade I) of the Pondicherry Judicial Service. This writ petition was heard along with other two writ petitions filed by the Pondicherry Bar Association challenging the appointment of one V.A.Edward Kumar in junior scale (Grade II) and Grade I in the Pondicherry Judicial Service. 116. I have heard Mr.Mahimai Raj, learned counsel for the petitioner and Mr.N.RChandran, learned Senior Counsel for the contesting respondents 2 to 5. Mr.S.Mahimai Raj reiterated the conten- tions raised in the affidavit. 117. The case of the contesting respondents viz. respondents 2 to 5, in my view, is totally different from the 6th respondent Edward Kumar and hence, the ground of attack available to the petitioner in W.P.Nos.3642 and 9391 of 1992 would not be available to the petitioner herein viz. R.Vadivelu. 118. Necessary facts for appreciating the legal contentions may be summarised as under: (i) On 23.1,1980, the Government of Pondicherry issued Pondicherry Judicial Service 1980. This rule was amended on 10.12.1980 , and the same was published ;in the gazette on 17.12.1980. R.Vadivelu. 118. Necessary facts for appreciating the legal contentions may be summarised as under: (i) On 23.1,1980, the Government of Pondicherry issued Pondicherry Judicial Service 1980. This rule was amended on 10.12.1980 , and the same was published ;in the gazette on 17.12.1980. (ii) Before the issue of the new Rules, the recruitment to the post of District Munsif Subordinate Judge was governed by a rule under Art.309 of the Constitution of India Pondicherry Judicial Department Rules. Respondents 2 to 5 were practising lawyers and were recruited under the old Rules and appointed as District Munsifs. The method selection under the Pondicherry Judicial Department Rules, 1965, was by direct recruitment and the procedure followed by the Government was, (i) calling for application from eligible candidates; and (2) an interview to be conducted by the Recruitment Committee assess the merit and Suitability of the candidates. The Recruitment Committee consisted three members, the Chief Judge, Judicial Department, the Chief Secretary of the Territory of Pondicherry and the Law Secretary of the Government of Pondicherry. 119. The educational qualifications required for direct recruitment: Rule 7: Essential: 1. Degree in Law of recognised University of equivalent. 2. About three years experience as a legal practitioner. 3. Must have been enrolled as an Advocate of High Court or Courts in Pondicherry. Qualifications relaxable at Commission ’ s discretion in case of candidates otherwise qualified. ; Desirable: Knowledge of French language. 120. The details of the educational qualification and professional experience of respondents 2 to 5, on the date of direct recruitment are as follows: 121. The details regarding the service particulars of respondents 2 to 5 are as follows: 122. The nomenclature of the post of District Munsif has been changed as junior (Grade II) officer. The nomenclature of the Subordinate Judge was changed as junior (Grade I) officer. The nomenclature of District Judge was changed as senior scale Respondents 2 to 5 have been functioning as junior scale (Grade II) from the date first appointment as District Munsif. They are promoted as junior scale (Grade I) officers. 123. Now, the petitioner has come forward with this writ petition for quo warranto challenging the appointment of respondents 2 to 6 as junior scale (Grade II) officer (District Munsif) and junior scale (Grade 1) officer (Subordinate Judge) and prays this Court to writ of quo warrant. 124. They are promoted as junior scale (Grade I) officers. 123. Now, the petitioner has come forward with this writ petition for quo warranto challenging the appointment of respondents 2 to 6 as junior scale (Grade II) officer (District Munsif) and junior scale (Grade 1) officer (Subordinate Judge) and prays this Court to writ of quo warrant. 124. According to Mr.N.R.Chandran, learned Senior Advocate appearing for the contesting respondents 2 to 5, this writ petition is not maintainable for the following reasons: (a) The petitioner has no locus standi to file this writ petition because he is a member Pondicherry Bar Association which had restricted its relief only against Edward Kumar has given up the relief in respect of respondents 2 to 5. The petitioner, being a member the Association, is bound by the stand taken by the Association and hence, the petitioner no locus standi to maintain this writ petition. (b) The submissions of Mr.S.Mahimai Raj, learned counsel for the petitioner, was under genuine impression that the Association would also challenge the appointment respondents 2 to 5 and since the Association has given up the attack in respect appointment of respondents 2 to 5, the petitioner was constrained to file the present petition. 125. I am of the view that this contention of the learned counsel for the petitioner does stand scrutiny because of total lack of averment in the affidavit in this regard. In other words, petitioner Mr.R. Vadivelu has not given reasons in the affidavit filed in support of petition. On the other hand, the averment in paragraph 2 of the affidavit filed in 14035 of 1992 is as follows: "I state that I am an advocate practising in Pondicherry and hence has substantial and concern in the Administration of Justice in the Union Territory of Pondicherry. the 6th respondent had been appointed as Judicial Officer in the rank of Sub Pondicherry and this created adverse reactions from the members of the Bar in Pondicherry and there were also a few days of absention from the Court by the advocates. the 6th respondent had been appointed as Judicial Officer in the rank of Sub Pondicherry and this created adverse reactions from the members of the Bar in Pondicherry and there were also a few days of absention from the Court by the advocates. I, was prompted to look into the genesis of the judicial appointments made from time the Union Territory of Pondicherry and it appears to me that respondents 2 to 6 have to the offices held by them and they are usurpers to their respective offices without authority, inasmuch as their appointments have not been made in accordance with I, therefore, present the above writ petition with a view to ensure that the judiciary Pondicherry isoccupied by persons entitled to the office and appointed in accordance rules." I am of the opinion that the above averment does not support or reflect the advanced by the learned counsel for the petitioner at the Bar and hence, this writ has to be rejected on the ground that the petitioner has no locus standi. This answered accordingly. 126. It is urged by Mr.N.R.Chandran, that the writ petition is liable to be dismissed ground of laches. As seen, above, respondents 2 to 5, unlike the 6th respondent Kumar, are function-ingas Judicial Officers right from the date of their first appointment. 2nd respondent has put in 15 years and 7 months, the 3rd respondent has put in 7 years 3 months, the 4th respondent has put in 10 years and 2 months and the 5th respondent put in 12 years and 9 months in Judicial Service. Respondents 2 to 5 were inducted the new Pondicherry Judicial Service Rules as early as 2.7.1984 and if the petitioner to challenge their appointments, he should have done so in 1984 itself, inasmuch ground now urged was available to him even in 1984. Hence, to file a writ petition after years, in my view, is an abuse of the process of Court and the petitioner is trying to the settled things. In this connection, I would like to rely oh the following two decisions. 127. The first decision is reported in P.S.Sadasivaswami v. State of Tonal Nadu, A.I.R. S.C. 2771:1974 Lab I.C. 1431, wherein the. In this connection, I would like to rely oh the following two decisions. 127. The first decision is reported in P.S.Sadasivaswami v. State of Tonal Nadu, A.I.R. S.C. 2771:1974 Lab I.C. 1431, wherein the. Supreme Court has held as follows: "It is not that there is any period of limitation for the Courts to exercise their powers Art.226 nor is it that there can never be a case where the courts cannot interfere in a after the passage of a certain length of time. But, it would be a sound and wise exercise discretion for the Courts to refuse to exercise their extraordinary powers under Art.226 case of persons who do not approach it expeditiously for relief and who stand by and things to happen and then approach the Court to put forward stale claims and try to settled matters. The petitioner’s petition should, therefore, have been dismissed Entertaining such petitions is a waste of time of the Court It clogs the work of the Court impedes the work of the Court in considering legitimate grievances as also its normal We consider that the High Court was right in dismissing the appellant ’ s petition as well appeal." 128. The next decision is reported in Ashok Kumar Mishra v. Collector, Raipur, A.I.R S.C. 112 At page 115 (paragraph 7), the Supreme Court has observed as follows: "It is well settled that the power of the High Court under Art.226 of the Constitution to an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue will lead to public inconvenience and interference with rights of others. This rule applies to a case in which the validity of an election to a local authority is challenged. The whether in a given case the delay involved is such that it disentitles a person to relief Art.226 is a matter within the discretion of High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances. “129. Learned Senior Counsel for respondents 2 to 5 submits that the” issue of quo is not maintainable. According to him, the quo warranto will lie only in a ease of to a public office. “129. Learned Senior Counsel for respondents 2 to 5 submits that the” issue of quo is not maintainable. According to him, the quo warranto will lie only in a ease of to a public office. In this case, respondents 2 to 5 ate validly appointed by a authority and so long as they function under an appointment order issued by a competent authority, it will be an effective answer to a rule issued in a writ of quo warranto. petitioner is in effect contending is that the said appointments are illegal and he wants Court to go into the question of validity of the order of appointment incidentally collateral question. Hence, he should have properly filed for issue of a writ of certiorari invited this Court to go into the question of the validity of the order of appointment effect a writ of certiorari and therefore, the petitioner is obliged to explain the approaching this Court. Even in a quo warranto this Court can reject the application affected by laches. I am entirely in agreement with Mr. N.R. Chandran on his submissions my view, his submissions are well founded on legal principles and merit acceptance. connection, I would like to cite the decision reported in Mukhtiar Singh v. State of A.I.R. 1991 P.& H. 20, wherein it has been held as follows:. “Apart from this, this complaint lacks in bona fides and it appears to have been engineered with ulterior motive by certain interested persons. The respondent was appointed and no dispute was ever raised with regard to the correctness of his appointment The move is with some sinister, design. A writ of quo warranto is not issued as a matter of is a discretionary relief and the court should consider all the circumstances of including lapse of time, and circumstances which would establish laches, acquiescence estoppel. The rules regarding issuance of discretionary relief were staled thus in Halsbury Laws of England, 3rd Edition, Volume II, para. 281 in which it was stated thus: ‘ An information in the nature of a quo war-ranto was not issued, and an injunction thereof will not be granted as a matter of course. It is in the discretion of the court or grant it according to the facts and circumstances of the case... 281 in which it was stated thus: ‘ An information in the nature of a quo war-ranto was not issued, and an injunction thereof will not be granted as a matter of course. It is in the discretion of the court or grant it according to the facts and circumstances of the case... the Court might discretion decline to grant a quo warranto information where it would be vexatious or where an information would be futile in its result, or where there was an alternative remedy which was. equally appropriate and effective: ” Therefore, I hold that this writ petition for issue of quo warranto against respondents not maintainable. 130. I shall now consider the merit of the contention of the parties. The main contention Mr.S.Mahimai Raj, learned counsel for the petitioner is that the order dated appointing respondents 2 to 5 to the Pondicherry Judicial Service is not an order recruitment and therefore is not governed by Rule 8 of the Rules and hence, respondents and 7 ought to have followed the procedure prescribed under Rule 9, in which case, should have invited application by advertisement and only after the submission applications by respondents 2 to 5, they should have been appointed. 131. The above contention is not tenable for the following reasons. Respondents 2 to regularly appointed as District Munsifs under the old Rules, viz, Pondicherry Department Rules. They were qualified and each was asked to commence probation of them satisfactorily completed the probation. With regard to respondents 3 and 4, have been passed declaring that they had completed the probation satisfactorily- dated 9.11.1977 and 153.1979 respectively. With regard to respondents 2 and though they had completed the probation, they must be deemed to have completed probation. This point has been explained in the counter affidavit filed by the 4th respondent C Patric in paragraphs 13 and 14 and by respondents 2 and 5 in their counter affidavit paragraph 6. I need not repeat it here again. 132. In view of the above factors, the Government themselves invoked Rule 31 of the and permitted them to continue as if this rule had not come into force. While dealing the other two writ petitions, I have already extracted Rule 31. So, I need not repeat it 133. Mr. I need not repeat it here again. 132. In view of the above factors, the Government themselves invoked Rule 31 of the and permitted them to continue as if this rule had not come into force. While dealing the other two writ petitions, I have already extracted Rule 31. So, I need not repeat it 133. Mr. R.Krishnamurthi, learned Senior Advocate for the Government of Pondicherry, submits that in File No. 1, from paragraph 11 onwards (commencing from page 3), have been issued invoking Rule 31 of the Rules and respondents 2 to 5 were permitted to continue. The purpose of Rule 31 enables the holding a cadre post to continue until he is appointed to hold a cadre post under Rules. So, under Rule 31, there is no question of selection of a person already postal the time of commencement of the Rules and it is only a formal appointment under new Rules. In view of this, there is no question of existing incumbents submitting applications and Rule 9 has no application to the existing incumbents. Therefore, their should have been dealt with only under Rule 8 which deals with initial recruitment service. A person holding the post under a valid rule after going through the process selection, acquired a right to hold the post even after the new Rules are notified. If person is required to go through the process of selection once over again, merely because new service rule is constituted, replacing the old service, it would violate Art. 16 since entire service which they put in after regular selection is set at naught. This is purport of Rule 31 or Rule 8 or Rule 9 of the new Rules. Hence, respondents 2 to entitled to continue in the posts even after the new service had been constituted rules replacing the old rules. The rules relating to selection cannot be applied to respondents 2 to 5 who have been already selected under the old rules and probation declared in a post can be undergone once and the same has been already completed. 134. The case of respondents 2 to 5 appears to have been dealt with under Rule deals with initial recruitment. In paragraphs supra while dealing with the other petitions, I have extracted Rule 8 of the Rules and also Rule 2(g). The case of respondents to 5. 134. The case of respondents 2 to 5 appears to have been dealt with under Rule deals with initial recruitment. In paragraphs supra while dealing with the other petitions, I have extracted Rule 8 of the Rules and also Rule 2(g). The case of respondents to 5. were dealt with under Rule 8 for appointment to the service under the new Rules consent as required for initial recruitment under Rule 25 has been obtained from them. were considered by the High Court and on recommendation by the High Court, they found fit. Their seniority had been fixed in terms of Rule 8(3) assigning the seniority, into account the service put in by respondents 2 to 5 under the old Rules. They were asked to undergo probation under Rule 14(2) and in their. case. Rule 14(1) was invoked they were confirmed from the date of their appointment. In view of these facts, contention of the petitioner that an advertisement should have been called for the of fresh recruitment is totally untenable and devoid of merits. The scope of Rule governed as a transitory measure governing the persons who were functioning at the commencement of the Rules. Rule 8 should be read along with Rule 31 and hence, of respondents 2 to 5 was considered rightly for initial recruitment to service and they validly inducted under the new Rules. 135. It is true, that an order was issued on 2S.7.1983 retrospectively appointing 17 with effect from 17.12.1980. in this list, out of 17 persons, the names of respondents were not found. Therefore, another order was passed on 2.7.1984 appointing respondents to 5 along with the 6th respondent Edward Kumar to the new service. The contention petitioner is that the second order dated 2.7.1984 is not an order of initial recruitment it was passed subsequently after an order of initial recruitment had been passed 25.7.1983. The substance of the contention of the petitioner is, that the order 25.7.1983 is the order relating to first recruitment and that there cannot be any other regarding initial recruitment on 2.7.1984. This contention is not tenable inasmuch scope of Rules 8 and 31 will cover all appointments in respect of persons who were office on the commencement of. the Rules. Since Rule 8 is a transitory provision, all cases persons holding office on the date of commencement of the Rules should be governed by Rule 8. This contention is not tenable inasmuch scope of Rules 8 and 31 will cover all appointments in respect of persons who were office on the commencement of. the Rules. Since Rule 8 is a transitory provision, all cases persons holding office on the date of commencement of the Rules should be governed by Rule 8. Hence, the contention of the petitioner in this regard is not correct. 136. Even on merits, when the order dated 25.7.1983 was issued, it included four who were not holding office as Judicial Officers as on 25.7.1983. The name AChandrasekhara Menon, Item No3 in the said list, ought not to have been found because was not holding a cadre post on that date and he was holding the post of Law Secretary the Government of Pondicherry. Respondents 2 to 5 invited my attention to paragraph the counter affidavit filed by the 4th respondent, wherein this point has been elaborately dealt with. In other words, the names of respondents 2 to 5 had been ’ erroneously to be included in the order dated 25.7.1983 and they cannot be deprived of their right appointed in the new service. They have been selected regularly under the old functioning as such. Retrospective appointment made on 25.7.1983 with effect 17.12.1980 itself is illegal since appointment can be made only to posts existing on the date appointment and not retrospectively wherein persons who were not in judicial service 25.7.1983 have been given appointment retrospectively. 137. The writ petition has to be dismissed on another ground also viz., it is hit acquiescence and the petitioner is estopped from filing this writ petition since no dispute ever raised with regard to the correctness of the appointment. 138. Mr.N.R.Chandran, learned Senior Advocate, submits that any appointment accordance with the Rules under Art.309 of the Constitution of India by a competent authority is valid in law provided the eligibility criterion is fulfilled for the vacant posts as that date and they cannot be termed as usurpers. Pondicherry Judicial Service Rules, does not supersede the previous rules framed under Art.309of the Constitution of Since the selection, appointment and probation were already covered by the earlier Rules, the formulation of the new Rules cannot wipe out the earlier selection and as respondents 2 to 5 are not usurpers to judiciary. 139. Pondicherry Judicial Service Rules, does not supersede the previous rules framed under Art.309of the Constitution of Since the selection, appointment and probation were already covered by the earlier Rules, the formulation of the new Rules cannot wipe out the earlier selection and as respondents 2 to 5 are not usurpers to judiciary. 139. In the decision reported in The State of Punjab v. Dharam Singh, A.I.R. 1968 1210: 1968 Cur.L.J. 508:17 Fac.L.R.9:1968 Lab.I.C. 1409: (1968)2 S.C.A.329: 34 408, the Supreme Court has held as follows: "In the present case, Rule 6(3) forbids extension of the period of probation beyond years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed continue in that post as a probationer by implication. The reason is that such an implication is., negatived by the service rule forbidding extension of the probationary period beyond maximum period fixed by it. In such a case, it is permissible to draw the inference that employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication." 140. In the decision reported in Shiv Kumar Sharma v. Haryana State Electricity Board, Chandigarh, (1988)3 S.L.R. 524, the Supreme Court has observed as follows: "The appellant should have been confirmed on June 10,1965, on which date he had completed two years of his probationary period. As has been stated already, the probationary period was not extended. The board has not hid down any guideline for confirmation. There is no rule showing when an officer of the Board will be confirmed. While there is some necessity for appointing a person in government service on probation for a particular period, there may not be any need for confirmation of that officer after the completion of probationary period. If during the period of probation a government servant is found to unsuitable, his services may be terminated. On the other hand, if he is found to be suitable, he would be allowed to continue in service. If during the period of probation a government servant is found to unsuitable, his services may be terminated. On the other hand, if he is found to be suitable, he would be allowed to continue in service. The archaic rule of confirmation, still in force, gives a scope to the executive authorities to act arbitrarily of mala fide giving rise unnecessary litigations. It is high time that the government and other authorities should think over the matter and relieve the government servants of becoming victims of arbitrary actions. In this connection, we may refer to the decision in the case of S.B.Patwardhan others v. State of Maharashtra and others, (1977)3 S.C.R. 775 , where Chandrachud, C.J., speaking for the Court observed as follows: "Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were confirmed even though substantive vacancies were available in which they could have been confirmed, It shows that confirmation does not have to conform to any set rules and whether, an employee should be confirmed or not depends on the sweet will and pleasure the Government." ‘141. In the decision reported in Narender Chadha v. Union of India A.I.R. 1986 S.C. 638, Supreme Court has decided as under; "At one stage it was argued before us on behalf of some of the respondents that petitioners who have not been appointed in accordance with Rule 8(1)(a)(ii) could not treated as members of the Indian Economic Service or of the Indian Statistical Service at and hence there was no question of determining the question of seniority as between petitioners and the direct recruits. This argument has got to be rejected. It is true that petitioners were not promoted by following the actual procedure prescribed under Rule (a)(ii) but the fact remains that they have been working in posts included in Grade IV from the date on which they were appointed to these posts. The appointments are made name of the President by the competent authority. They have been continuously these posts. The appointments are made name of the President by the competent authority. They have been continuously these posts. They are being paid all along the salary and allowances payable to incumbents of such posts. They have not been asked to go back to the posts from which they promoted at any time since the dates of their appointment. The orders of promotion in some cases show that they are promoted in the direct line of their promotion. expressly admitted that the petitioners have been allowed to hold posts included in Grade of the aforesaid services, though on an ad hoc basis. (See para 21 of the counter filed by Shri P.G.Lele, Deputy Secretary, Department of Personnel and Administrative Reforms). It is therefore, idle to contend that the petitioners are not holding the posts Grade IV of the two Services in question. It is significant that neither the Government issued orders of reversion to their former posts nor has anybody so far questioned the of the petitioners to continue in the posts which they are now holding. It would be unjust hold at this distance of time that on the facts and in the circumstances of this case, petitioners are not holding the posts in Grade IV. The above contention is therefore substance. But we, however, make it clear that it is not our view that whenever a person appointed in a post without following the Rules prescribed for appointment to that post, should be treated as a person regularly appointed to that post. Such a person may reverted from that post. But in a case of the kind before us where persons have allowed to function in higher posts for 15 to 20 years with due deliberation it would certainly unjust to hold that they have no sort of claim to such posts and could be unceremoniously or treated as persons not belonging to the Service at all, particularly the Government is endowed with the power to relax the Rules to avoid unjust results instant case the Government has also not expressed its unwillingness to continue the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts. The only question agitated before us relates seniority as between the petitioners and the direct recruits and such a question can only where there is no dispute regarding the entry of the officers concerned into the Grade. In the instant case, there is no impediment even under the Rules to treat petitioners and others who are similarly situated in Grade IV because of the provision contained in Rule 16 thereof. Rule 16 as it stood at the relevant time follows: "16. The Government may relax the provisions of these rules to such extent as may necessary to ensure satisfactory working or remove inequitable results." New Rule 16 reads thus: ‘16. Powers to relax: The Government may in consultation with the Commission reasons to be recorded in writing relax any of the provisions of these rules with respect any class or category of personsor posts and no such relaxation shall be given so as to retrospective effect ’. "142. The last decision on this point is reported in Y.V.Rangaiah v. J.Sreenivasa Rao, 1983 S.C. 852:1983 Lab.I.C. 1240: (1983)1 S.C.W.L.R. 789: (1983)2 Lab.L.J. 23: S.C.C. 284: (1983)1 Lab.L.N. 680 wherein the Apex Court has held as follows: "The vacancies which occurred prior to the amended rules would be governed by rules and not by the amended rules. It is admitted by counsel for both the parties henceforth promotion to the post of Sub Registrar, Grade II, will be according to the rules on the zonal basis and not on the Statewise basis and therefore, there was no question of challenging the new rules. But the question is filling the vacancies that occurred prior amended rules. We have not the slightest doubt that the posts which fell vacant prior amended rules would be governed by the old rules and not by the new rules. “143. In my view, the writ petition is devoid of merits and vexatious so far as it relates respondents 2 to 5. However, so far as the 6th respondent Edward Kumar is concerned, have held in paragraphs supra while dealing with the other two writ petitions that warranto has to be issued against him. For the same reason, I hold in this writ petition that quo warranto has to be issued against him. 144. However, so far as the 6th respondent Edward Kumar is concerned, have held in paragraphs supra while dealing with the other two writ petitions that warranto has to be issued against him. For the same reason, I hold in this writ petition that quo warranto has to be issued against him. 144. For the foregoing reasons, W.P.No. 14035 of 1992 is allowed in so far as it relates the 6th respondent Edward Kumar and a writ of quo warranto is issued against him favour of the petitioner. So far as the other respondents are concerned, W.P.No. 14035 1992 is dismissed. However, there will be no order as to costs. 145. In the result, W.P.Nos.3642 and 9391 of 1992 are allowed as prayed W.P.No.14035 of 1992 is allowed in so far as it relates to the 6th respondent Edward and the same is dismissed against the other respondents. However, there will be no to costs in all the writ petitions. 146. Before parting with this case, I would like to refer to the elaborate arguments Mr.G.Masilamani, learned Senior Counsel for the petitioners in respect of Arts.233 to Chapter VI of the Constitution of India, and give my ruling on that. The Subordinate is governed by Chapter VI consisting of Arts.233 to 237 of the Constitution of India. provides for the appointment of District Judges. As per subclause (1) of appointment, postings and promotions of District Judges shall be made by the Governor the State in consultation with the High Court. As per Art.233(2), persons who are already service and Advocates who have not less than seven years experience shall alone be for appointment as District Judges. Art.236 (b) defines ‘ Judicial Service ’ as a consisting exclusively of persons intended to fill the post of District Judge and other Judicial posts infer rior to the post of District Judge. The word ‘ service ’ appearing in (2) has been interpreted to mean only real and true Judicial Service and not any executive service even if called as Judicial Service. 147. In this connection, I may refer to the decision of the Supreme Court reported Chandra Mohan v. State of Uttar Pradesh, A.I.R. 1966 S.C. 1987: (1967)1 S.C.A. (1967)1 S.C.W.R. 153: (1967)1 Lab L.J. 412: 14 Fac.L.R. 386: (1967)2 S.CJ. 147. In this connection, I may refer to the decision of the Supreme Court reported Chandra Mohan v. State of Uttar Pradesh, A.I.R. 1966 S.C. 1987: (1967)1 S.C.A. (1967)1 S.C.W.R. 153: (1967)1 Lab L.J. 412: 14 Fac.L.R. 386: (1967)2 S.CJ. 717 Subba Rao, C.J., speaking for the Bench observed as follows:” The gist of the provisions (Arts.233 to 237 of the Constitution of India) may be stated Appointments of persons to be, and the posting and promotion of District Judges in any shall be made by the Governor of the State. There are two sources of recruitment, namely service of the Union or of the State, and (ii) members of the Bar. The said Judges from first source are appointed in consultation with the High Court and those from the source are appointed on the recommendation of the High Court. But in the appointments of persons to the judicial service other than as District Judges they made by the Governor of the State in accordance with rules framed by him in consultation with the High Court and the Public Service Commission. But the High Court has control all the District Courts and Courts subordinate thereto, subject to certain limitations. The setting, viz., the chapter dealing with Subordinate Courts, in which the expression service’ appears indicates that the service mentioned therein is the service pertaining Courts. That apart, Art.236(2) defines the expression ‘judicial service ’ to mean a consisting exclusively of persons intended to fill the post of District Judge and other Judicial posts inferior to the post of District Judge. If this definition, instead of appearing Art.236, is placed as a clause before Art.233(2), there cannot beany dispute service ’ in Art.233(2) can only mean the judicial service. The circumstance that the of ‘ judicial service ’ finds a place in a subsequent Article does not necessarily lead contrary conclusion. The fact that in Art.233(2) the expression ‘ the service ’ is used in Arts.234 and 235 the expression ‘ judicial service’ is found is not decisive of the whether the expression ‘ the service ’ in Art.233(2) must be something other than the judicial service, for, the entire chapter is dealing with judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with District Judges. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with District Judges. The expressions ‘exclusively ’ and emphasise the fact that the judicial service consists only of persons intended to fill up posts of District Judges and other Civil Judicial posts and that is the exclusive service judicial officers. Having defined ‘ judicial service ’ in exclusive terms, having provided appointments to that service and having entrusted the control of the said service to the of the High Court, the makers of the Constitution would not have conferred a blanket on the Governor to appoint any person from any service as a District Judge. We, therefore, construe the expression ‘ the service in clause (2) of Art.233 as the judicial service. But, it said that this construction ignores Art.237 of the Constitution. We do not see Art.237 helps the construction of Art.233 (2). Art.237 enables the Governor to implement the separation of the judiciary from the executive. Under this Article, the Governor notify that Arts.233, 234, 235 and 236 of the Constitution will apply to Magistrates to certain modifications or exceptions; for instance, if the Governor so notifies, the Magistrates will become members of the judicial service, they will have to be appointed the manner prescribed in Art.234, they will be under the control of the High Court Art.235 and they can be appointed as District Judges by the Governor under Art.233(1). state it differently, they will then be integrated in the judicial service which is one sources of recruitment to the post of District Judges. Indeed, Art.237 emphasises the that till such an integration is brought, about, the Magistrates are outside the scope said provisions. The said view accords with the constitutional theme of independent judiciary and the contrary view accepts a retrograde step." 148. Therefore, Rule8of the Pondicherry Judicial Service Rules in so far as the provides for the appointment of ‘ Legal Advisers to Government ’ as District Judges scale in Pondicherry Judicial Service) is ultra vires Art.233(2) of the Constitution of India. such, any rule and/or appointment made in contravention of Art.233(2) of the Constitution shall be illegal and ultra vires the Constitution. Hence, I am of the firm view, executive from the Law Department cannot be appointed to Higher Subordinate Judiciary. 149. such, any rule and/or appointment made in contravention of Art.233(2) of the Constitution shall be illegal and ultra vires the Constitution. Hence, I am of the firm view, executive from the Law Department cannot be appointed to Higher Subordinate Judiciary. 149. Art.234 of the Constitution relates to the recruitment of Judicial Officers other District Judges. As per this Article, the appointment of Judicial Officers other than the Judges shall be made by the Governor of the State in accordance with the Rules therefor, after consultation with the High Court and the Public Service Commission. consultation contemplated under this Article was interpreted as one for the framing rules and not as one for making the appointment. Reliance is placed on the decision in N.Devasahayam v. State of Madras, A.I.R. 1958 Mad. 53: (1958)1 M.L.J. 28 : (1957) W. 563: I.L.R. 1958 Mad 58. 150. Art.235 of the Constitution provides for the control of Subordinate Courts. As Article, the control of the Subordinate Courts including postings, promotions, and leave vest with the High Court. However, in respect of District Judges, as per Art.233(1), orders regarding appointments, postings and promotion shall be issued by the Governor the State in consultation with the High Court. As regards Judicial Officers other District Judges, the orders regarding their postings, promotions, grant of leave, etc, issued by the High Court directly. The Government of a State cannot issue any regarding postings, promotions, leave, etc., in respect of Judicial Officers other District Judges. Even in respect of the District Judges, orders of appointment, posting promotion shall be issued by the Governor, that too, in consultation with the High Court other matters such as transfers, leave, disciplinary proceedings, etc, shall exclusively the High Court. 151. Separation of judiciary under Art.50 of the Constitution shall become meaningless matters pertaining to the control of the subordinate judiciary, such as appointments, postings, transfers, promotion, leave, disciplinary action, etc., are left to the discretionary act of the Government. 152. It was brought to my notice at the time of hearing that judicial separation is yet take place in the Union Territory of Pondicherry. Even to-day, I am told, the control Subordinate Judicial Officers, which should be exercised by the High Court under Art.234 the Constitution, is still left with the Government of Pondicherry (Law Department). 152. It was brought to my notice at the time of hearing that judicial separation is yet take place in the Union Territory of Pondicherry. Even to-day, I am told, the control Subordinate Judicial Officers, which should be exercised by the High Court under Art.234 the Constitution, is still left with the Government of Pondicherry (Law Department). This evident from the various orders such as posting, transfers, deputation orders, orders granting leave, etc., are being issued by the Law Department, Government of Pondicherry, to the Judicial Officers in the Pondicherry Judicial Service by simply marking copies to High Court. Therefore, it is high time that the High Court should assume its constitutional duty in respect of the Pondicherry Judicial Service under Art.235 of the Constitution, without any further loss of time. The Government of Pondicherry shall discontinue the said practice hitherto followed and shall await instructions from the High Court, Madras, in matters relating to transfers, postings, grant of leave, disciplinary proceedings, etc. V.K. --------- Order accordingly.