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2007 DIGILAW 827 (KER)

Ajith v. State of Kerala

2007-12-06

THOTTATHIL B.RADHAKRISHNAN

body2007
Judgment :- Thottathil B. Radhakrishnan, J. These Writ Petitions relate to the recruitment of Munsiff-Magistrates in the Kerala Judicial Service. 2. By the Kerala Judicial Service Rules, 1991, hereinafter called the "Special Rules", for short, which came into force with effect from 1-1-1992, a common service called "The Kerala Judicial Service" was constituted in the place of the then existing Kerala Civil Judicial Service and the Kerala Criminal Judicial Service. The officers in Category No.2 as per R.3(2) of the Special Rules are the Munsiff-Magistrates. 3. R.5 of the Special Rules provides that direct recruitment and transfer, in the manner provided in sub-r.(3) of that Rule, shall be the methods of appointment to the category of Munsiff-Magistrates. Out of every four vacancies arising in that category, the first, second and third vacancies are to be filled by direct recruitment and the fourth vacancy is to be filled by transfer from among the eight categories enlisted under sub-r.(3) of R.5. In the absence of suitable and qualified persons for appointment by transfer, the vacancies reserved for such appointment shall also he filled up by direct recruitment. 4. As per R.10(1) of the Special Rules, among other things, a period of five years practice at the Bar was prescribed for an Advocate to be eligible for appointment by direct recruitment with certain relaxations for members of the Scheduled Castes/Scheduled Tribes. 5. Sub-r.(2) of R.10 of the Special Rules provided that for recruitment by transfer, an aspiring officer in service ought to have functioned at least for a period of two years in any one or more of the categories enumerated under R.5(3) and ought to have practised as an Advocate for a period of not less than three years prior to his appointment into service. The period of two years of in-service experience that was prescribed, was to he excluding the period of service, if any, not counting for probation. 6. In 1993, disposing of R.P.No.249 of 1992 in W.P.(C) No. 1022 of 1989, the Apex Court in All India Judges' Association v. Union of India ((1993) 4 SCC 288), hereinafter, the "All India Judges' Association 1993", held, among other things, that the legal practice of three. years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy. years should be made one of the essential qualifications for recruitment to the judicial posts at the lowest rung in the judicial hierarchy. The rules for recruitment of judicial officers were directed to be amended forthwith, to incorporate those directions. 7. In 2002, as per the judgment dated 21-3-2002 in All India Judges' Association v. Union of India ((2002) 4 SCC 247), hereinafter, the "All India Judges' Association 2002", the Apex Court directed the High Courts and the State Governments to amend the Service Rules so as to enable a fresh law graduate who may not even have put in three years' practice, to be eligible to compete and enter the judicial service. It was further recommended that the fresh recruits into the judicial service should he imparted training of not less than one year, preferably two years. 8. In spite of the aforesaid directions being issued by the Apex Court on 21-3-2(X)2, the proceedings for amendment of the Special Rules in terms of those directions were not generated by the competent authority, though in terms of Art.234 of the Constitution of India, the making or amendment of the Special Rules for the judicial service has to be by the Governor, after consultation with the High Court. It appears that, placed in this situation, the Registry of the High Court prepared a draft for the amendment of the Special Rules and forwarded it to the Government, with the approval of the Full Court. 9. The Government thereafter arranged a discussion with the service organisations, regarding the amendment of the Special Rules, on the proposals of the High Court. The Registrar of the High Court was also addressed to attend the meeting. The Registrar found it quite unnecessary to attend the meeting, because no alteration or modification was recommended by the Government and being of the view that the proposals made by the High Court were in conformity with the directions of the Apex Court. A message was sent, to the Government, accordingly. 10. Thereafter, as per G.O.(P)No.158/2006/Home dated 31-8-2006, the Government (sic) of Kerala made and issued the Kerala Judicial Service (Amendment) Rules, 2006, hereinafter referred to as the "Amending Rules". The rule-making power in terms of Art.234 is with the Governor and not with the Government. 11. A message was sent, to the Government, accordingly. 10. Thereafter, as per G.O.(P)No.158/2006/Home dated 31-8-2006, the Government (sic) of Kerala made and issued the Kerala Judicial Service (Amendment) Rules, 2006, hereinafter referred to as the "Amending Rules". The rule-making power in terms of Art.234 is with the Governor and not with the Government. 11. As per the Amending Rules, the qualification prescribed in the Special Rules for appointment by direct recruitment to the category of Munsiff-Magistrates was substituted, among other things, as follows: i) He shall be a holder of degree in law recognised by the Bar Council of India for the purpose of enrolment as an Advocate. As regards the recruitment by transfer, the qualification stood substituted as follows: An officer in service shall be eligible for appointment to Category No. 2, only if he is a holder of a degree in law recognized by the Bar Council of India for the purpose of enrolment as an Advocate. 12. The effect of the aforesaid amendments made by the Amending Rules. in so far as they are relevant for these Writ Petitions are the following: (a) Any person who is a holder of a degree in law, recognised by the Bar Council of India for the purpose of enrolment as an Advocate, would be eligible for being considered for appointment by direct recruitment. The prescription in R. 10(1), as it stood before amendment, that no Advocate shall be eligible for appointment by direct recruitment unless he is having practice at the Bar for a period of not less than five years, ceased. Therefore, one who possessed the prescribed educational qualification could apply for direct recruitment even if he is not an Advocate. (b) Those in-service candidates, who possess such degree in law would be entitled for being considered for appointment by transfer. Thereby, the express stipulation in R.10(2) of the Special Rules, as it stood before amendment, that a person, for being considered for appointment by transfer ought to have had three years' practice as an Advocate to his credit before appointment in the service and ought to have functioned for at least two years in one of the categories enumerated in R.10(2), ceased to be effective. 13. 13. The substitution of R.10(1) of the Special Rules, as noticed above, is against the recommendation of the High Court, which was to the effect that, for being considered for direct recruitment, a candidate should be a holder of a degree in law recognized for the purpose of enrolment as an Advocate and that he must be practising as an Advocate in the Courts of Civil/Criminal jurisdiction on the last date fixed for receipt of application. W.P.(C)No.5481 of 2007 14. W.P.(C)No.5481 of 2007 is filed by an Advocate enrolled on 22-11-1998. He challenges the Amending Rules on the ground that they are without consultation with the High Court as enjoined by Art.234 of the Constitution, which consultation is mandatory. He further contends that the amendments proposed by the High Court are in terms with the directions of the Apex Court in All India Judges' Association 2002 and that though it is stated in the Explanatory Note to the Amending Rules that the Government had accepted the proposal of the High Court, the Amending Rules have been issued without insisting that an aspirant for direct recruitment ought to he one, who is practising as an Advocate on the last date fixed for receipt of application, which was a requirement in terms of the opinion of the High Court. He also pleads that in spite of the fact that the directions in question were issued by the Apex Court in the year 2002, no valid Rules are yet published in accordance with those directions. 15. The Registrar (Subordinate Judiciary) of the High Court, being the third respondent, has filed a counter affidavit in W.P.(C)No.5481 of 2007, reiterating the aforesaid facts and producing a copy of the letter 26-7-2006, whereby. the Registrar of the High Court and office bearers of different organisations and associations were addressed by the Under Secretary in the Home (C) Department, for the Additional Chief Secretary to Government, convening a meeting to discuss the matters. I may immediately notice that the said letter (Ext.R3(a) in W.P.(C)No.5481 of 2007) does not contain any view of the Government regarding the amendments. 16. I may immediately notice that the said letter (Ext.R3(a) in W.P.(C)No.5481 of 2007) does not contain any view of the Government regarding the amendments. 16. The Government has filed a counter affidavit in W.P.(C)No.5481 of 2007, through the Joint Secretary to Government in the Home Department, contending that the Amending Rules were issued after discussions, with various service organisations, on the draft proposals and that though letter was issued to the Registrar of the High Court requesting attendance in the meeting with the service organisations in connection with the proposals for amendment, the Registrar did not attend. The Government contends that the amendment to R.10(1), whereby no insistence of being an Advocate is made for direct recruitment, is in consonance with the directions of the Apex Court in All India Judges' Association 2002. W.P.(C)No.9427 of 2007 17. W.P.(C)No.9427 of 2007 is filed by an aspirant for appointment by transfer from the category of Assistant Public Prosecutors Grade-II, who. going by the express provisions of the unamended Special Rules, ought to have had to his credit two years of service in such category, excluding the period of service, if any, not counting for probation. He also ought to have had three years of practice as an Advocate to his credit before he joined service. By the Amending Rules, the requirement of practice as an Advocate prior to joining service, is taken away. That amendment is not at variance with the recommendation of the High Court. There is also no express provision in R.10(2), as amended, to insist on two years service in the feeder category, for being considered. 18. While it is admitted by the petitioner in W.P.(C).No.9427/2007 that he is over-aged for being considered for direct recruitment, his contention is that, though he has not completed two years of probation as Assistant Public Prosecutor Grade-H, he ought to be treated as entitled to be considered for appointment by transfer, as Munsiff-Magistrates, since there is no express provision in R.10(2) of the Special Rules, as amended, stipulating two years' service. On such premise, he seeks to quash the term in the notification issued by the High Court inviting applications, that for recruitment by transfer, one ought to have functioned, at least, for a period of two years in one or more of the categories enumerated in R.5(3) of the Special Rules. On such premise, he seeks to quash the term in the notification issued by the High Court inviting applications, that for recruitment by transfer, one ought to have functioned, at least, for a period of two years in one or more of the categories enumerated in R.5(3) of the Special Rules. As a corollary, he further seeks the relief of a direction to consider his application without insisting on a certificate prescribed as per the High Court's notification, intended to evidence the length of service of the incumbent in the category from which he/she seeks consideration for appointment by transfer as Munsiff-Magistrate. 19. The only counter affidavit filed in this case is by the second respondent, the Registrar of the High Court, pointing out that the directions in All India Judges' Association 2002 are only regarding direct recruitment and the intention is only to reach at outstanding law graduates with aptitude for service. It is contended that even in the absence of any specific prescription in the Special Rules regarding the requirement of two years' service, such requirement has to be insisted upon because, the Kerala State and Subordinate Services Rules, 1958, hereinafter referred to as "General Rules," for short, provides in Clause (13) of R.2 of Part I thereof that a candidate, for being recruited by transfer, ought to have been an approved probationer, which indisputably, is two years for an Assistant Public Prosecutor Grade-II. 20. Heard learned Senior Advocate Smt. V.P. Seemandini and Advocate Sri. K. Jaju Babu for the petitioners, learned Senior Advocates Sri. K.R.B. Kaimal and Sri. O.V. Radhakrishnan for the High Court and Sri. N. Manoj Kumar, learned Special Government Pleader (Finance) for the Government. Issues: 21. Having regard to the pleadings and the arguments advanced, the following issues emerge for consideration: I. Are these Writ Petitions maintainable? II. Are the Amending Rules, to the extent impugned. made after consultation with the High Court as enjoined by Article 234 of the Constitution? III. If not, is the impugned amendment to R.10(1)of the Special Rules void and inoperative? IV. II. Are the Amending Rules, to the extent impugned. made after consultation with the High Court as enjoined by Article 234 of the Constitution? III. If not, is the impugned amendment to R.10(1)of the Special Rules void and inoperative? IV. In the absence of any provision in that regard in R.10(2) of the Special Rules as amended by the Amending Rules, is the prescription in the High Court notification for the Kerala Judicial Service Examination - 2007 that no officer in service shall be eligible for appointment by transfer unless he has functioned at least for a period of two years in any one or more of the categories mentioned in R.5(3) of the Special Rules unauthorised or bad in law? If so, is the application of the petitioner in W.P.(C).No.9427/2007 to he considered without insisting on certificate in Form C as required by that notification? Issue No. I 22. In All India Judges' Association 1993, the Apex Court directed by its concluding paragraph as follows: "56. Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court and from no other court. Further, the proceedings, if any, for implementation of the directions given in this judgment shall be filed only in this Court and no other court shall entertain them.” In view of the said clear direction, the question of implementation or clarification of the directions contained in the decisions in the All India Judges' Assn. could be sought for only from the Apex Court and not from the High Court. This situation is beyond any doubt, at any rate, after the decision of the Apex Court in State of Bihar v. Ramjee Ram ((1998) 8 SCC 499). 23. In the aforesaid premise, the issue of maintainability of these Writ Petitions was raised during the hearing. It is pointed out by the learned counsel for the petitioners as also the learned Government Pleader that no clarification or directions for implementation of the directives in the different judgments in All India Judges' Association are' being sought for and that the issue raised is only as regards the validity of the rules and other related questions. It is pointed out by the learned counsel for the petitioners as also the learned Government Pleader that no clarification or directions for implementation of the directives in the different judgments in All India Judges' Association are' being sought for and that the issue raised is only as regards the validity of the rules and other related questions. The arguments advanced on the merits of these Writ Petitions arc also such that they do not really call for any clarification or directions regarding compliance of the directives issued by the Apex Court as per the different judgments and orders in All India Judges' Association Under such circumstances, these Writ Petitions are held to be maintainable. Issue No.II 24. The Amending Rules are challenged only to the extent of the amendment to R.10(1) of the Special Rules whereby the prescription recommended by the High Court, namely, that a candidate for appointment by direct recruitment must be practising as an Advocate on the last date fixed for receipt of application, has not been included in the amendment. The question, in this context, is as to whether the High Court has been consulted in terms of Article 234 of the Constitution in connection with the impugned amendment to R.10(1) of the Special Rules. 25. In A.C.Thalwal v. High Court of H.P. ((2000) 7 SCC 1), the Apex Court laid down that the provision in Art.234 of the Constitution, for consultation with the High Court, is mandatory and that the consultation contemplated by Art.234 is not a matter of mere formality; it has to be meaningful and effective. It was categorically laid down that the status which the High Court, as an institution, enjoys in the constitutional scheme and the expertise and the experience which it possesses, of judicial services, command with justification, a place of primacy being assigned to the High Court in the process of consultation. Fundamental reason for this view, as stated in that judgment, is that judicial services have to be independent of executive influence and so the Constitution has placed them on a pedestal different from other services under the State and the constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy. Fundamental reason for this view, as stated in that judgment, is that judicial services have to be independent of executive influence and so the Constitution has placed them on a pedestal different from other services under the State and the constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy. Following the observations of the Constitutional Bench in Supreme Court Advocates-on-Record Association v. Union of India ((1993) 4 SCC 441), it was observed that the High Court assumes primacy, because of its being best equipped to discharge the greater burden in the process of consultation contemplated by Article 234 of the Constitution and it is not a question of determining who between the two constitutional functionaries is entitled to greater importance or to take the winner's prize at the end of the debate. 26. The directions of the Apex Court in All India Judges' Assn. 2002 were issued on 21-3-2002. The rule-making power under Art. 234 is of the Governor. As a necessary corollary, the Governor is obliged in terms of Art.234 to make rules. Such rule-making has to be after consultation with the High Court. The Governor is to act on the aid and advice of the Council of Ministers, except in so far as he is by or under the Constitution required to exercise his functions, or any of them in his discretion. In the light of Article 163, the Government is therefore obliged to ensure that the constitutional duty of the Governor in terms of Art.234 is promptly and expeditiously discharged, having regard to the constitutional requirement to ensure that matters in relation to recruitment to judicial service are promptly made. It is a matter of record that in spite of the directions of the Apex Court on 21-3-2002, as already noticed, no action emanated from the Government to forward the draft rules. It was, obviously, under those circumstances that the High Court made the draft of the rules and forwarded it. It is the clear and specific stand of the High Court, in its recommendations, as part of the consultative procedure, that one has to be practising as an Advocate in the civil/ criminal courts as on the last date fixed for receipt of application, for being considered for appointment as Munsiff/Magistrate by direct recruitment, in terms of the law laid by the Apex Court as noticed above. This view of the High Court is of primary importance and had to be given pre-eminence, if a law is to be made in the form of a rule in exercise of power under Art.234 of the Constitution touching the recruitment into the judicial service of the State. 27. As already noticed, the Under Secretary, on behalf of the Additional Chief Secretary to Government wrote the letter (Ext.R3(a) in W.P.(C).No.5481/2007), addressed to the Registrar of the High Court and twenty-six service organisations, convening a meeting "to discuss the matter on the above item”. "Above item" related to the fixation of qualification for recruitment. The said letter does not contain any expression of the views of the Government in that regard. The Government had not expressed any view contrary to that of the High Court. 28. The High Court, going by Art.366(14), is a Court constituted under the Constitution, as a High Court or which may be declared by Parliament to he a High Court for the purpose of the Constitution. The Registrar of the High Court is not the consultant in terms of Art.234 of the Constitution. Even if the Government had a different view in the matter, it was its constitutional obligation to intimate such views to the High Court through its Registrar which then would gain attention of the Full Court of the High Court as may he as required by the rules and practice of procedure and administrative business of the High Court. Even if the Registrar were to attend the meeting as convened as stated above, it was not within the powers of the Registrar to fake any view or make any statement regarding any policy decision touching the judicial service, which is entirely a matter on which the consultative opinion can come only from the High Court, thereby meaning the Full Court, in terms of the rules and practice of the High Court on the administrative side. 29. The Constitution has vested the control of the subordinate judiciary under Art.235 of the Constitution in the High Court as a whole and not its Chief Justice alone. Every Judge of the High Court is duty bound to take adequate interest in the institution which is placed under the control of the High Court. 29. The Constitution has vested the control of the subordinate judiciary under Art.235 of the Constitution in the High Court as a whole and not its Chief Justice alone. Every Judge of the High Court is duty bound to take adequate interest in the institution which is placed under the control of the High Court. The administrative control of the subordinate courts of the State vests not in the Chief Justice alone, but in the Court over which the Chief Justice presides - (See All India Judges Association 1992). The provisions of Arts 234 and 235 work in unison and it is therefore that the authority of control under Art.235 is conferred exclusively on the authority which is to be consulted to make a rule in exercise of authority under Art.234. This, plainly, is the High Court which is the Court presided by the Chief Justice, thereby meaning the High Court as a whole, that is, the Full Court. 30. Having regard to the constitutional set up and the primacy of the High Court in the consultative process which is mandatory in terms of Art.234 and because it isthe High Court that has to be consulted with and not the Registrar, I am of the view that it was impermissible for the Government to convene a meeting of the nature in which it had wanted to do in terms of the aforesaid letter (Ext.R3(a) in W.P.C.(C). No.5481/2007) in lieu of the consultation prescribed by the Constitution. 31. The proper course of consultation in terms of Art.234 will he for the Government to place its views in writing, addressing the Registrar General of the High Court with a request for the views of the High Court and the Registrar General has to then obtain the views of the High Court, thereby meaning the Full Court, as may be necessary, having regard to the rules and practice of procedure in relation to administrative matters and the specific views of the High Court are to be communicated to the Government by the Registrar. If the Government is still to have a view contrary to that expressed by the High Court, such opinion has to be placed for further consultation with the High Court following the procedure indicated above and in arriving at a final conclusion, pre-eminence has to be given to the views of the High Court, following the law laid by the Apex Court in Supreme Court Advocates-on-Record Association (supra). If there is any conflict between the views of the High Court tendered in terms of Art.234 and the advice of the Council of Ministers under Art. 163, to the Governor in the matter, that is to say, the views of the Government, the views of the High Court would prevail to override the other. This is how the pre-eminence, as noticed above, is to be given effect to. This is the law in relation to the procedure for consultation in terms of Art.234 of the Constitution. 32. For the aforesaid reasons, no due action was taken in terms ofArt.234 of the Constitution in relation to the making of the Amending Rules to the extent impugned and the Government has usurped the powers of the High Court and violated Art.234 of the Constitution in the making and publication of the Amending Rules to the extent impugned. It is held so. Issue No.III 33. Having regard to the findings under Issue No.II that the impugned amendment to R.10(1) of the Special Rules is in violation of the mandatory consultation directed by Article 234 of the Constitution, if the examination of the vires of the amendment is confined to that issue alone, needless to say, the impugned amendment has to be held as void and inoperative, being in violation of the constitutional injunctions. However, to declare or not, the impugned amendment to R.10(1) of the Special Rules as void and inoperative, it is necessary that certain other constitutional issues arising in the situation are also examined. 34. In All India Judges' Assn. v. Union of India & Ors. ((1992) 1 SCC 119), hereinafter referred to as the "All India Judges' Association 1992", the Apex Court dealt with an application under Art.32 of the Constitution. One of the primary concerns that gained attention during those proceedings was the requirement of bringing about uniform conditions of service in the subordinate judiciary throughout the country. v. Union of India & Ors. ((1992) 1 SCC 119), hereinafter referred to as the "All India Judges' Association 1992", the Apex Court dealt with an application under Art.32 of the Constitution. One of the primary concerns that gained attention during those proceedings was the requirement of bringing about uniform conditions of service in the subordinate judiciary throughout the country. After surveying the pre-independence and post-independence evolution of the judicial set up and after adverting to and considering the proposals of the Law Commission, certain directions were issued, which are encapsulated in paragraph 63 of that judgment. Those directions were issued after notice of hearing was served on the Union of India and all the States and Union Territories, many of whom, including the State of Kerala, had responded. Review petitions and certain other interlocutory applications relating to the aforesaid judgment of 1992 were disposed of by the judgment in All India Judges' Association 1993 (supra), in paragraph 10 of which, the Apex Court specifically dealt with the contention of the review petitioners that in issuing directions, the Apex Court had encroached upon the powers of the executive and the legislature under Art.309 to prescribe the service conditions. It was laid down that it would he against the spirit of the Constitution to deny any role to the judiciary in that behalf, for theoretically, it would not be impossible for the executive or the legislature to turn and twist the tail of the judiciary by using the said power. The Apex Court noticed that such a consequence would he against one of the seminal mandates of the Constitution, namely, to maintain the independence of the judiciary. In so far as recruitment to the judicial services is concerned, the Apex Court directed that all States shall take immediate steps to prescribe three years' practice as a lawyer as one of the essential qualifications for recruitment as the judicial officer at the lowest rung. In All India Judges' Association, 2002, the Apex Court noticed that the experience gained with the passage of time showed that the best talent which is available is not attracted to the judicial service and that it should be no longer mandatory for an applicant desirous of entering the judicial service to be an Advocate of at least three years' standing. The High Courts and the State Governments were accordingly directed to amend their rules to enable a fresh law graduate who may not even have put in three years' practice, to be eligible to compete and enter judicial service. Having regard to the arguments advanced, it is appropriate to read paragraph 32 of the judgment in All India judges' Association 2002, which is as follows: "32. In All India Judges' Association case (1993)4SCC 288) (SCC at p.314) this Court has observed that in order to enter the judicial service, an applicant must be an advocate of at least three years' standing. Rules were amended accordingly. With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an advocate for at least 3 years should be clone away with. After taking all the circumstances into consideration, we accept this recommendation of the Shetty Commission and the argument of the learned amicus curiae that it should he no longer mandatory for an applicant desirous of entering the judicial service to he an advocate of at least three years' standing. We accordingly. in the light of experience gained after the judgment in All India Judges case direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in three years of practice, to be eligible to compete and enter the judicial service. We, however, recommend that a fresh recruit into the judicial service should be imparted training of not less than one year, preferably two years." (emphasis supplied) 35. Reverting to All India Judges' Association 1993, it is necessary and appropriate to immediately read paragraph 20 thereof, which is as follows: "20. It has, however, become imperative, in this connection, to take notice of the fact that the qualifications prescribed and the procedure adopted for recruitment of the Judges at the lowest rung are not uniform in all the States. It has, however, become imperative, in this connection, to take notice of the fact that the qualifications prescribed and the procedure adopted for recruitment of the Judges at the lowest rung are not uniform in all the States. In view of the uniformity in the hierarchy and designations as well as the service conditions that we have suggested, it is necessary that all the States should prescribe uniform qualifications and adopt uniform procedure in recruiting the judicial officers at the lowest rung in the hierarchy. In most of the States, the minimum qualifications for being eligible to the post of the Civil Judge-cum-Magistrate First Class/ Magistrate First Class/Munsiff Magistrate is minimum three years' practice as a lawyer in addition to the degree in law. In some States, however, the requirement of practice is altogether dispensed with and judicial officers are recruited with only a degree in law to their credit. The recruitment of raw graduates as judicial officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the Judge has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct graduates fresh from the Universities to occupy seats of such vital powers is neither prudent nor desirable. Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the court-system and the administration of justice begotten through legal practice. The practice involves much more than mere advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a Judge is likely to remain incomplete. The experience as a lawyer is, therefore, essential to enable the Judge to discharge his duties and functions efficiently and with confidence and circumspection. Many States have hence prescribed a minimum of three years' practice as a lawyer as an essential qualification for appointment as a judicial officer at the lowest rung. It is, hence, necessary that all the States prescribe the said minimum practice as a lawyer as a necessary qualification for recruitment to the lowest rung in the judiciary. Many States have hence prescribed a minimum of three years' practice as a lawyer as an essential qualification for appointment as a judicial officer at the lowest rung. It is, hence, necessary that all the States prescribe the said minimum practice as a lawyer as a necessary qualification for recruitment to the lowest rung in the judiciary. In this connection, it may be pointed out that under Arts.233(2) of the Constitution, no person is eligible to be appointed a District Judge unless he has been an advocate or a pleader for not less than seven years while Art.217(2)(b) and 124(3)(b) require at least ten years' practice as an advocate of a High Court for the appointment of a person to the posts of the Judge of the High Court and the Judge of the Supreme Court respectively. We therefore, direct that all States shall take immediate steps to prescribe three years' practice as a lawyer as one of the essential qualifications for recruitment as the judicial officer at the lowest rung." 36. To resolve the apparent conflict of opinion, forming one of the foundations of this lis, it is necessary that the scope of the relevant directions in All India Judges' Association 2002, to wit, that contained in paragraph 32 thereof, as quoted above, is assimilated. While the view in 1993 was that neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the court-system and the administration of justice begotten through legal practice, it was noticed in 2002 that with the passage of time, experience has led to the conclusion that it is no longer mandatory for an applicant desirous of entering judicial service to earn the standing at the Bar which was ordered in All India Judges' Association 1993. 37. The object sought to be achieved by the prescription of three years by the judgment in All India Judges' Association 1993 was to ensure that before recruitment, the aspirant interacts with the several components of administration of justice, as a lawyer, and becomes familiar with the working of the said components. The purpose was to ensure that he gains exposure to the varied components of the justice delivery system as contemplated by the Apex Court in paragraph 20 of the judgment in All India Judges' Association 1993. The purpose was to ensure that he gains exposure to the varied components of the justice delivery system as contemplated by the Apex Court in paragraph 20 of the judgment in All India Judges' Association 1993. Obviously, to gain experience as an Advocate, one has to be enrolled under the Advocates Act. Therefore, it was the requirement in terms of the directions issued by the Apex Court in 1993 that only an Advocate enrolled as such could be considered for direct recruitment, for, bereft of enrolment as an Advocate, one would not gain the exposure, experience and expertise envisaged. 38. Deviating from the view in 1993, it was recommended in 2002 that a fresh recruit into judicial service should be imparted training of not less than one year, preferably two years. It is not the requirement of the Constitution or any statute, including the Advocates Act, that it is only an Advocate borne on the roll of the Bar Council, who could be recruited as a Munsiff-Magistrate. I may, at once notice that in so far as recruitment as District Judges is concerned, Art.233(2) of the Constitution prohibits recruitment of a person as a District Judge unless he had been an Advocate or a Pleader for not less than seven years, while Arts.217(2)(b) and I24(3)(b) require at least 10 years' practice as an Advocate of a High Court for the appointment of a person to the posts of the Judge of the High Court or the Judge of the Supreme Court, respectively. These constitutional provisions were also noticed by the Apex Court in All India Judges' Association 1993 while laying down as quoted above. It is neither the requirement of Chapter VI of Part VI or of Chapter I of Part XIV of the Constitution, including Art.309, nor of any primary legislation, including the Kerala Public. Services Act 1968 that one has to be an Advocate for being appointed as Munsiff-Magistrate, at the lowest rung of the Kerala Judicial Service. It is neither the requirement of Chapter VI of Part VI or of Chapter I of Part XIV of the Constitution, including Art.309, nor of any primary legislation, including the Kerala Public. Services Act 1968 that one has to be an Advocate for being appointed as Munsiff-Magistrate, at the lowest rung of the Kerala Judicial Service. So much so, a reading of paragraph 32 of All India Judges' Association 2002 would show that the directions issued therein are clear and specific that it should be no longer mandatory for an applicant desirous of entering judicial service to be an Advocate and the High Courts and the State Governments were to amend their rules so as to enable a fresh law graduate to be eligible to compete and enter the judicial service. The prime concern of the Apex Court was to draw the bright young law graduates, the best talent available, into the judicial service. The reference to three years' standing in paragraph 32 of All India Judges' Association 2002 is, obviously, because the Apex Court was issuing the directions contained in that paragraph in contrast to the directions contained in paragraph 20 of the All India Judges' Association 1993. There is no ambiguity in that regard. 39. By the directions in All India Judges' Association 2002, the State Governments and the High Courts stood directed to amend their rules. The constitutional support for those directions emanate, particularly, out of Arts.32 and 141 of the Constitution. Along with that, those directions get the plenary power of the Apex Court, supported by the law laid in All India Judges 'Association 1993 regarding the scope and authority of the Apex Court to issue directions commanding the making of the rules as dictated by the Apex Court, in so far as it relates to the field of judiciary. Therefore, notwithstanding the procedure provided for in Art.234, the State Governments and the High Courts were obliged by the directions of the Apex Court to have the rules relating to judicial services of the respective States modified in accordance with the directions contained in paragraph 32 of All India Judges' Association 2002, as noticed above. Therefore, notwithstanding the procedure provided for in Art.234, the State Governments and the High Courts were obliged by the directions of the Apex Court to have the rules relating to judicial services of the respective States modified in accordance with the directions contained in paragraph 32 of All India Judges' Association 2002, as noticed above. Hence, any opinion rendered by the High Court under Art.234 and any aid and advice, on the subject, to the Governor in terms of Art.163 of the Constitution, would be of no avail, unless such opinions are in conformity with the directions of the Apex Court as noticed above. Therefore, notwithstanding the question whether there was a complete consultation following the mandate of Art.234, the State Government and the High Court were obliged to amend the Service Rules as noticed above, in terms of the directions in paragraph 32 of the All India Judges' Association 2002. 40. In the view that has been taken above, the lack of consultation does not vitiate the impugned amendment to R.10(1) of the Special Rules. The challenge to the said Rule as amended, accordingly, fails. 41. Before parting with the consideration of this issue, it needs to he clarified that the above findings are confined to the amendment to the Special Rules doing away with the requirement of enrolment as an Advocate, for being considered for direct recruitment as Munsiff-Magistrate. Incidentally, it has to be noticed that the intention of the Apex Court. going by All India Judges' Association 2002, was, as already noticed, to reach at the best talent and to catch them young, to be trained and offered for service to the Nation, in the judiciary. The said need would not, obviously, be satisfied by using the amendment to widen the field of choice, thereby enabling those who had not joined the field of the justice delivery system as Advocates, but had scouted elsewhere in search of greener pastures, and ultimately, seeking entry to the lowest rung of the judiciary. This is an aspect which does not appear to have been subjected to appropriate consultation in terms of Art.234 of the Constitution. This is an aspect which does not appear to have been subjected to appropriate consultation in terms of Art.234 of the Constitution. Therefore, while affirming the Rule as it stands, it is the requirement that the State Government and the High Court immediately commence the consultative process mandated by Art.234 to secure modes to ensure that while giving effect to the directions contained in All India Judges Association 2002, formulation of the Rule does not lead to depleting the aimed bench-mark of quality, ability and talent in the judiciary. Issue No. IV: 42. The petitioner in W.P.(C).No.9427/2007 is admittedly over-aged for being considered for direct recruitment, in terms of the Special Rules. Though in terms of the decision of the Apex Court in Sushma Suri v. Govt. of National Capital Territory of Delhi ((1999) 1 SCC 330), Government counsel, who may be a Public Prosecutor or a Government Advocate may be entitled to be considered for appointment by treating his term as a Government Pleader or a Public Prosecutor also to be counted for his experience at the bar. such view would be of no avail to the petitioner, because, admittedly, he is over-aged for being considered for appointment by direct recruitment. Therefore, the short question that arises is as to whether he is entitled to be considered for appointment by transfer without completing a period of two years of probation as an Assistant Public Prosecutor Grade II. 43. R.2 of the Special Rules provides that the provisions of the General Rules shall apply to the Kerala Judicial Service wherever express provision is not otherwise made in the Special Rules. R.5 of Part II of the General Rules contains the general rule regarding the method of recruitment. That Rule read with R.2(13) in Part 1 of the General Rules enjoins that a candidate can he recruited by transfer to a service only if his appointment to the service is in accordance with the rules for recruitment by transfer and if at the time of his first appointment thereto, he is either a full-member or an approved probationer in any other service, the rules for which prescribe a period of probation for members thereof. Admittedly, two years is the period of probation for an Assistant Public Prosecutor Grade II. Admittedly, two years is the period of probation for an Assistant Public Prosecutor Grade II. Therefore, the petitioner in W.P.(C).No.9427/2007, who is only a probationer in the category of Assistant Public Prosecutors Grade II, cannot be considered for appointment by transfer as a Munsiff-Magistrate, in terms of the Special Rules. Hence, even in the absence of any specific stipulation in the Special Rules prescribing a minimum period of service in any among the categories enumerated in R.5(3) of the Special Rules, the petitioner in W.P.(C).No.9427/2007 is not entitled to be considered for appointment by transfer as a Munsiff-Magistrate. Reliefs: In the result, the Writ Petitions are dismissed. The parties shall bear their respective costs.