JUDGMENT :- (This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to declare the Karnataka Judicial Service (Recruitment) Rules, 2004 at Annexure-A dated 09.09.2005 as illegal as the same is in contravention of the decision of the Apex Court in All India Judges Association & Others Vs Union of India & Others reported in 2002(3) Kar.L.J.26(SC) by issuing an appropriate writ.) B.S. Patil J. 1. Petitioner is a Judicial Officer presently working as II Addl. District & Sessions Judge, Bellary. In this writ petition, he is seeking a declaration that the Karnataka Judicial Service(Recruitment) Rules, 2004, with regard to appointment to the post of District Judge, are illegal as the same contravene the decision of the Apex Court in the case of All India Judges’ Association & Others Vs. Union Of India & others 2002(3) Kar.L.J 26 (SC). He has also sought for quashing Annexure-B Circular issued by the Register General, High Court of Karnataka, Bangalore, on 12.12.2008 notifying the norms/guidelines for promotion of the judicial officers to the cadre of District Judge from the cadre of Civil Judge (Sr.Dn.). 2. The petition averments reveal that the petitioner was appointed as a Munsiff during May 1987 and was promoted as Civil Judge (Sr.Dn.) during the year 1999. As he had put in 23 years of service as a Judicial Officer, he was hopeful of securing a promotion to the post of District Judge based on seniority-cum-merit. 3. In exercise of the powers under Articles 233, 234 and the proviso to Article 309 of the Constitution of India, the Karnataka Judicial Service (Recruitment) Rules, 2004, have been framed by the State providing for appointment, method of recruitment, qualification, age limit and other matters as regards the post of District Judges, Civil Judges (Sr.Dn.) and Civil Judges (Jr.Dn.). 3. In exercise of the powers under Articles 233, 234 and the proviso to Article 309 of the Constitution of India, the Karnataka Judicial Service (Recruitment) Rules, 2004, have been framed by the State providing for appointment, method of recruitment, qualification, age limit and other matters as regards the post of District Judges, Civil Judges (Sr.Dn.) and Civil Judges (Jr.Dn.). For the post of District Judges, three modes of recruitment are provided, (1) 50% shall be filled by promotion from the cadre of Civil Judges (Sr.Dn.) on the basis of seniority-cum-merit: (ii) 25% of the said posts shall be filled by promotion from the cadre of Civil Judges (Sr.Dn.) who have put in no less than 5 years of service strictly on the basis of merit through limited departmental competitive examination in accordance with the guidelines to be framed by the High Court: and (iii) 25% of the posts shall be filled by direct recruitment by conducting a competitive examination by the High Court. These Rules are framed keeping in mind the directions and guidelines issued by the Apex Court in the All India Judges’ Association & Others Vs. Union of India & others 2002(3) Kar.L.J 26(SC). 4. In so far as second channel of recruitment mentioned in the aforementioned Rules pertaining to 25% of the posts to be filled up by promotion from the cadre of Civil Judges (Sr.Dn.) who have put in not less than 5 years service on the basis of merit through a limited departmental competitive examination in accordance with the guidelines to be framed by the High Court, of which we are concerned in this case, norms and guidelines are framed which are produced by the petitioner at Annexure-B. Written examination of one paper of three hours duration consisting of two parts – (a) Constitutional and Civil laws; (b) Criminal Laws, with 50 marks for each paper is prescribed. 25 maximum marks is prescribed for viva voce. For annual confidential reports 15 marks; percentage of disposal of cases as against the quota fixed for five years by taking note of the pendency in the court presided over by the officer. 25 maximum marks is prescribed for viva voce. For annual confidential reports 15 marks; percentage of disposal of cases as against the quota fixed for five years by taking note of the pendency in the court presided over by the officer. 10 marks is fixed (100% disposal 7 marks, 100% to 200% 7 + 2 marks, 200% and above disposal 9 + 1 marks; average of previous 5 years disposal will be taken into consideration for the said purpose); non-availment of leave during last 5 years – 5 marks is fixed. For assessment of judgments 45 marks is fixed. (Judgments in 5 cases chosen at random and consisting of, as far as possible, 3 civil and 2 criminal cases rendered over a period of 5 years preceding the month during which the promotion of the officer is considered. Maximum of 9 marks is required to be awarded separately for each judgment considering the following aspects (i) Knowledge of law – 3 marks; (ii) narration of facts and appreciation of evidence – 3 marks; (iii) conclusion and reasoning – 2 marks; (iv) language – 1 mark.) Thus, the evaluation consists of total marks of 200. It is also stipulated that an officer shall secure minimum 50% marks in the written test. 5. We have ascertained from the Counsel appearing for the petitioner that the petitioner appeared for the tests and was not qualified and is therefore not selected. Being unsuccessful in getting selected, petitioner has come up before this Court challenging the validity of the Rules and norms framed. 6. Learned Counsel for the petitioner has canvassed the following legal contentions. (i) The number of vacancies available for being filled up under the 25% earmarked for being filled up from Civil Judges (Sr.Dn.) who had completed 5 years of service was not notified; (ii) That the Supreme Court in All India Judges Association case approved the recommendations of Justice Shetty Commission to the effect that for the recruitment to the cadre of District Judges from among the Civil Judges (Sr.Dn.) an objective method of testing the suitability of the subordinate judicial officer for promotion was directed and the High Courts were required to frame rules in this regard. The norms now framed prescribed a full fledged competitive written examination and a viva-voce instead of providing for an objective assessment; (iii) As per Justice Shetty Commission, recommendation was made stating that service Judges between the age group of 35 & 45 years shall be made eligible for direct recruitment to the post of District Judges and Additional District Judges. This recommendation having been accepted by the Apex Court, the Rules/Norms framed ought to have incorporated the age limit between 35 and 45 years as eligibility for the service Judges to take the limited competitive examination to the post of District Judges. But, in the instant case, 144 persons above the age of 45 years who were not eligible to take the examination under the 25% quota have been allowed; (iv) That the Rules are silent with regard to inter se seniority of the District Judges recruited from the three different sources; and (v) That the cadre strength taken while making appointments is vitiated. 7. We have heard the learned Counsel for the petitioner and carefully perused the materials on record including the judgment rendered by the Apex Court in All India Judges’ Association case. 8. At the outset, we are of the view that the petition filed is not maintainable as the petitioner has without any demur appeared for the test under the very same Rules/Norms and guidelines. Being unsuccessful in getting through in the test conducted, petitioner has chosen to file this writ petition. The impugned Rules are framed as back as in the year 2005. They are published in the gazette on 09.09.2005. The impugned norms/guidelines for promotion to the post of District Judge are notified as per the Circular dated 12.12.2008. The examination (written test) for filling up the vacancies by conducting limited competitive examination for the eligible judicial officers who had put in 5 years of service in the cadre of Civil Judges (Sr.Dn.) was conducted on 10.05.2009. Appointment of 45 + 3 ad hoc District Judges/Civil Judges (Sr.Dn.) based on the test conducted as per Rules and Norms was made on 27.06.2009 and 29.07.2009. This writ petition is filed on 08.03.2010. It is thus clear that the petitioner has chosen to approach this Court challenging the norms having participated in the recruitment process under the same rules and norms and after failing to get qualified for recruitment. This writ petition is filed on 08.03.2010. It is thus clear that the petitioner has chosen to approach this Court challenging the norms having participated in the recruitment process under the same rules and norms and after failing to get qualified for recruitment. It is a well established principle by a catena of decisions of the Apex Court that in such circumstance, petitions at the instance of such persons may not be entertained. Reference can be made to the judgment in the case of K.A.NAGAMANI Vs. INDIAN AIRLINES ( 2009 (5) SCC 515 ). The Apex Court, in this case, has held that having participated in the selection process without any demur, the unsuccessful candidate cannot be later permitted to question the process. It is not the case of the petitioner that any of his fundamental rights under Articles 14 and 16 of the Constitution are violated. Therefore, on this ground alone, this writ petition deserves to be dismissed. 9. Even otherwise, the grievance made by the petitioner urging that the test to be prescribed ought to have been in the form of objective questions without requiring the officers to write detailed answers and not involving any viva voce, has no substance in law. The requirement, no doubt, is objective assessment of the merit. It is in this background only, the norms prescribe a written test of 100 marks with a stipulation that minimum 50% marks have to be obtained in the written test. Merely because a viva voce test with a stipulation of maximum marks of 25 is provided, it does not take away the objective criteria laid down in the norms for selecting the candidates. The entire norms examined as a whole which provide for marks for consideration of annual confidential reports, for percentage of disposals, for assessment of judgments, by further splitting them into different traits and components, have introduced objectivity in the assessment of the merit. Therefore, the assertions made to the contrary are baseless. 10. As regards the contention urged stating that the guidelines laid down in the All India Judges’ Association case are not followed while framing the rules and norms, it is useful to refer to the observations made by the Apex Court in paragraphs 27 & 28 of the said judgment, which are as under:- “27. 10. As regards the contention urged stating that the guidelines laid down in the All India Judges’ Association case are not followed while framing the rules and norms, it is useful to refer to the observations made by the Apex Court in paragraphs 27 & 28 of the said judgment, which are as under:- “27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of higher judicial service i.e., District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the higher judicial service, namely, by promotion from amongst the members of the subordinate judicial service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the Judicial Officers, hardworking as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy which is very necessary. At the same time, we are of the opinion that there hs to be certain minimum standards, objectively adjudged, for offices who are to enter the higher judicial service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the higher judicial service i.e., the District Judge cadre from amongst the Advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voice, we are of the opinion that there should be an objective method of testing the suitability of the subordinate Judicial Officers for promotion to the Higher Judicial service. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we except and get quicker promotion. Furthermore, there should also be an incentive amongst the relatively junior and other officers to improve and to compete with each other so as to excel and get quicker promotion. In this way, we except and get quicker promotion. In this way, we except that the caliber of the members of the higher judiciary service will further improve. In order to achieve this, while the ratio of 75 per cent appointment by promotion and 25 per cent by direct recruitment to the higher judicial service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned; 50 per cent of the total posts in the higher judicial service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case-law. The remaining 25 per cent of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard. 28. As a result of the aforesaid, to recapitulate, we direct the recruitment to the higher judicial service i.e., the cadre of District Judges will be: (1)(a) 50 per cent by promotion strictly from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test: (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service, and (c) 25 per cent of the posts shall be filled by direct recruitment form amongst the eligible Advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible.” 11. (2) Appropriate rules shall be framed as above by the High Courts as early as possible.” 11. Thus it is clear from the observations made in paragraph 27 of the judgment by the Apex Court, that the 25% of posts in the service shall be filled by promotion strictly on the basis of merit through a limited departmental competitive examination for which the qualifying service as Civil Judge (Sr.Dn.) should be not less than 5 years. The same is also reiterated in paragraph 28. The norms and the rules framed are consistent with this direction and hence the contentions urged to the contrary regarding fixation of age limit are untenable. 12. The other contentions urged by the learned Counsel for the petitioner regarding the inter se seniority between the recruitees from the three channels has no bearing on the issue raised in the writ petition and the grievance made by the petitioner. Therefore, it is unnecessary to examine the same in this writ petition. 13. Yet another contention raised by the petitioner regarding the failure to notify the number of vacancies available for different channels of recruitment cannot be permitted to be raised at this belated stage, particularly because the petitioner has participated in the recruitment process without raising any such objection. We do not find it appropriate to examine this contention at this stage at the instance of the petitioner, particularly when the entire process of selection are completed and the appointment orders are issued as back as in the month of June & July 2009. 14. Similarly, the grievance made regarding the cadre strength is also not sustainable. Petition is bereft of material particulars in this connection and the same does not deserve to be considered at this belated stage at the instance of the petitioner. 15. We therefore, do not find any valid and legal grounds to entertain this writ petition. Hence, the writ petition is dismissed.