Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 103 (PAT)

Sunil Kumar Sinha v. State Of Bihar

2000-01-19

P.K.SINHA, SACHCHIDANAND JHA

body2000
Judgment Sachchidanand Jha, J. 1. This letters patent appeal is directed against the judgment and order of the learned Single Judge dated 21st of May, 1999 in C.W.J.C. Nos. 2058 and 2089 of 1999 dismissing the writ petitions filed by the appellant and one Pushpa Sinha. 2. The appellant, who is a practising Advocate of this Court, tiled the writ petition for quashing a clause of the advertisement fixing the minimum age of 35 years for recruitment to the post of Additional District and Sessions Judge in the Bihar Superior Judicial Service. According to the appellant, in terms of the provisions of Article 233(2) of the. Constitution of India, which provides for direct recruitment to the post of District/Additional District Judge from Bar, Advocates having seven years practice are eligible for appointment and, therefore, fixing the minimum age limit at 35 years is not permissible as it deprives persons who have seven years practice as an Advocate but not completed 35 years of age from applying for the post. The learned Single Judge has held that fixing minimum age of 35 years for direct recruitment to the post of Additional District and Sessions Judge has reasonable nexus with the object sought to be achieved and, therefore, the classification between advocates below 35 years of age and above is not discriminatory. 3. Advertisement dated 29.1.99 has been issued by the Personnel and Administrative Reforms Department of the State Government inviting applications from the advocates for appointment to the post of Additional District and Sessions Judge in the Bihar Superior Judicial Service. As per the advertisement, inter alia, the candidate must be 35 years of age. The upper age limit of 50 years also has been fixed. The appellant is aggrieved by fixation of the minimum age of 35 years. According to him, in terms of Article 233(2) of the Constitution, an advocate who has seven years of practice is eligible for appointment and, therefore, no further condition can be laid down so as to affect his eligibility by fixing a minimum age. 4. Article 233 of the Constitution may be quoted at this very stage as under: 233. Appointment of District Judges.-(1) Appointments of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. 4. Article 233 of the Constitution may be quoted at this very stage as under: 233. Appointment of District Judges.-(1) Appointments of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. 5. In order to appreciate the import of Clause (2), it would be apt to read both the clauses of Article 233 together. Clause (1) which appears to be the main provision apropos the subject of appointment of District Judge, including the Additional District Judge, lays down that the appointment, promotion and posting of District Judge shall be made in consultation with the High Court; while Clause (2) provides that a person not already in service (of the Union or of the State) may also be appointed but only if he has been an advocate or pleader for not less than seven years. The word service has been interpreted to mean the Judicial service. See Chandra Mohan V/s. State of U.P. AIR 1966 SC 1987 . Thus, in real terms, Clause (1) contemplates appointment by promotion from amongst the members of the Judicial Service while Clause (2) contemplates direct recruitment from amongst the advocates. (We do not have pleaders. so called, after the. Advocates Act, 1961 came into force). The words "has been" occurring in Article 233(2) imply that the person need not necessarily be a practising advocate at the time of selection, it. would be sufficient if he has seven years practice experience as an advocate, provided of course he is recommended by the High Court. 6. It is in this context that, the words "shall only be eligible... if he has been for not less than seven years an advocate" occurring in Article 233(2) have to be understood. The significance of the word "only" also has to be noticed. Clause (2), as pointed out above, is intended to make the advocates also eligible for appointment as District Judge. if he has been for not less than seven years an advocate" occurring in Article 233(2) have to be understood. The significance of the word "only" also has to be noticed. Clause (2), as pointed out above, is intended to make the advocates also eligible for appointment as District Judge. If that is so, "also" should have been used to convey the intendment but instead, "only" has been used. In my opinion, the use of the word "only" signifies that the advocates shall be eligible for appointment only if he has experience of not less than seven years. Thus, Article 233(2) lays down only one aspect of the eligibility. 7. Article 217 of the Constitution provides for appointment of High Court Judges. Clause (2) of that Article lays down that a person shall not be qualified for appointment as a Judge of a High Court unless, inter alia, he has been an advocate of a High Court or of two or more such Courts in succession "for at least ten years". If for direct appointment as a Judge of a High Court from amongst the advocates, ten years practice is essential, for similar appointment as District Judge from amongst the advocates, a minimum practice experience had to be laid down as a qualification without which he would not be eligible for appointment. In other words, if the person does not have ten years experience as an advocate he is not eligible for appointment as a Judge of High Court and, similarly, if he does not have seven years experience as an advocate he is not eligible for appointment as a District Judge. 8. Thus, what Article 233 provides is the minimum eligibility for appointment to the post of District Judge or the Additional District Judge. The Article is not to be construed as a recruitment rule. As a matter of fact, in the State of Bihar, rules have been made under Article 309 read with Article 233 of the Constitution, called the Bihar Superior Judicial Service Rules, 1946 , relating to the appointment to the post: It may be useful to quote Rule 5 and Rule 6 of the said Rules as under: 5. As a matter of fact, in the State of Bihar, rules have been made under Article 309 read with Article 233 of the Constitution, called the Bihar Superior Judicial Service Rules, 1946 , relating to the appointment to the post: It may be useful to quote Rule 5 and Rule 6 of the said Rules as under: 5. Appointments to the Bihar Superior Judicial Service, which shall in the first instance, ordinarily be to the post of Additional District and Sessions Judge, shall be made by the Governor in consultation with the High Court.- (a) by direct recruitment, from among persons qualified and recommended by the High Court for appointment under Clause (2) of Article 233 of the Constitution; or (b) by promotion, from among members of the Bihar Civil Service (Judicial Branch). (6) Of the posts in the cadre of the Service, two-thirds shall be filled by promotion and one-third by direct recruitment: Provided that the State Government may in consultation with the High Court deviate from the said proportion in either direction. It would appear that even the Rules which have been expressly made for recruitment to the post of Additional District Judge, or the District Judge, in this State do not contain exhaustive provisions regarding the mode, criteria, etc. of selection and appointment to the post-service. 9. It is well settled that where rules are silent it is permissible to issue administrative instructions provided they are not inconsistent with the rules, if any. It would be useful to quote the following passage in the well known case of Sant Ram Sharma V/s. State of Rajasthan -- . We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that, there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. The learned Single Judge has gone into this aspect of the case and the point being well settled I do not wish to say more in this judgment. 10 The Bihar Service Code provides for compulsory age of retirement but it does not provide for minimum age of recruitment. Such an age is to be found either in the relevant rules under which appointment to particular post or service is made, of where there are no such rules governing appointment to the post or service or where the existing rules are silent on the point, the minimum age can be fixed by the State Government as part of the advertisement. There being no minimum or maximum age limit fixed in the Bihar Superior Judicial Service Rules, fixing the age limits cannot be said to be impermissible specially when it has been done in consultation with the High Court. 11. It would not be out of place to mention-that in this State direct recruitment to the Bihar Superior Judicial Service, i.e., to the post of Additional District and Sessions Judge earlier used to be made on the basis of viva voce test alone. Such appointment was last made in the year 1979. It was for the first time in the year 1990 when such appointments were made on the basis of written test, as a qualifying test, followed by viva voce test. If the plea of the appellant were accepted and all intending advocates having seven years of practice permitted to apply for the post, it might make the whole recruitment process unworkable considering the number of such advocates. 12. The learned Single Judge has considered the question of reasonableness of fixing the minimum age and has held that there is reasonable nexus with the object sought to be achieved and fixing 35 years as the minimum age cannot be said to be discriminatory. 12. The learned Single Judge has considered the question of reasonableness of fixing the minimum age and has held that there is reasonable nexus with the object sought to be achieved and fixing 35 years as the minimum age cannot be said to be discriminatory. I find myself in complete agreement with the learned Judge. Where appointments are to be made by selection from the eligible candidates, it is open to the Government to fix criteria in order to maintain high standard of competence. No error, therefore, can be found with the impugned clause of the. advertisement. In the above premises, I do not find any merit in the plea of the appellant. 13. In the result, this letters patent appeal stands dismissed. P.K. Sinha, J. I agree.