S. Buvaneswari v. The State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-7-2008CORAM:THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.14312 of 2008M.P.Nos.1 and 2 of 2008S. Buvaneswari...PetitionerVs.1.The State of Tamil Nadu,rep.by its Secretary to Government,Home Department,Fort St.George,Chennai - 600 009.2.The State of Tamil Nadu,rep.by its Secretary to Government,Law Department,Fort St.George,Chennai - 600 009.3.The Tamil Nadu Public Service Commission,rep.by its Secretary,Omanthoorar Government Estate,Anna Salai,Chennai - 600 002.4.The Controller of Examinations,Tamil Nadu Public Service Commission,Omanthoorar Government Estate,Anna Salai,Chennai - 600 002....RespondentsPRAYER: Writ Petition filed under Article 226 of the Constitutionof India, to issue a Writ of Certiorarified Mandamus calling forall the connected and relevant records relating to thenotification/advertisement, No.164, dated 10.5.2008 of Tamil NaduPublic Service Commission, the respondents herein and quash therequirement of having B.L.Degree on 10.5.2008 as stated in Clause 6(B) and direct the respondents to permit the petitioner to writethe examination on 2.8.2008 and 3.8.2008 for the post of CivilJudge (Junior Division) of Tamil Nadu State Judicial Service. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner:Mr.D.SadhasivanFor Respondents1 & 2:Mrs.Lita Srinivasan,Government AdvocateFor Respondents 3 & 4:Ms.C.N.G.Ezhilarasi(for TNPSC)O R D E RBy consent of both parties, the writ petition is taken up forfinal disposal.2.Petitioner, who is a third year Law Student ofTirunelveli Government Law College, has filed this writ petitionchallenging the notification issued by the TNPSC dated 10.5.2008fixing the cut-off date for having the required qualification as on'10.5.2008' for the post of Civil Judge (Junior Division) and forconsequential direction.3.The case of the petitioner is that the petitioner haspassed B.Com degree in first class from Manonmaniam SundaranarUniversity in April, 2005 and joined in the three year B.L. degreecourse in December, 2005 in Government Law College, Tirunelveli.Petitioner has completed the course and also appeared for the finalyear written examinations commenced on 19.5.2008 and concluded on2.6.2008. The results of the B.L. degree final year examinationsare yet to be published. According to the petitioner, she stoodfirst in the college in the first and second year examinations andshe was awarded the Jeeva Endowment award by the Tamil NaduDr.Ambedkar Law University, Chennai, for securing higher mark inthe first year examinations and she was paid Rs.5,000/- as reward.The Rotary Club of Tirunelveli awarded "Justice Ramaswamy MemorialAward" for being best Law Student for the academic year 2006-2007.Petitioner also represented the Government Law College, Tirunelveliand participated in the Moot Court competition, 2008, held at ArmyInstitute of Law, Mohali, in February, 2008. According to thepetitioner, by prescribing 10.5.2008 as the cut-off date for havingthe qualification for submitting applications to the post of CivilJudges (Junior Division) by the third respondent throughadvertisement No.164, petitioner's right to submit application,participation in the selection and get selected as Civil Judge(Junior Division) is affected. According to the petitioner, freshlaw graduates having been directed to be permitted to participateas per the Supreme Court decision reported in AIR 2002 SC 1752 (AllIndia Judges Association and Others v. Union of India and Others),by fixing the said cut-off date as 10.5.2008 i.e, even beforepublication of the results of the final year students of the LawColleges in the State is affecting the petitioner's right and it isin violation of Article 19(1)(g) of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/

4.The learned counsel appearing for the petitionersubmitted that the said date viz., '10.5.2008' was fixedarbitrarily without any basis by the third respondent, particularlywhen the written examinations for the three year B.L. Degree Coursewas over only on 2.6.2008 and therefore no fresh Law Graduate willbe available to apply for the said post of Civil Judge (JuniorDivision). The learned counsel further submitted that for theEngineering and Medical admissions, when entrance test wasconducted for selection, even the students who were undergoing PlusTwo (+2) course were permitted to apply and the same procedurecould be followed by the third respondent so as to enable the freshLaw Graduate to apply, whose results are likely to be publishedduring the course of the selection process and if the same ispermitted, the fresh Law Graduates, who secured their degrees tillthe date of interview could be in a position to participate and thejudgment of the Supreme Court as referred above can be given effectto.5.The learned counsel for the respondents on instructionssubmitted that the petitioner has only completed the course and hasnot even written the final year examinations on the date fixed bythe third respondent i.e, 10.5.2008. The Tamil Nadu State JudicialService (Cadre and Recruitment) Rules, 2007, issued inG.O.Ms.No.79, Home Department, dated 19.1.2007, which prescribesthe qualification for Civil Judges (Junior Division) states that aperson competing for the said post must possess a degree in Law ofa University in India and got enrolled in Bar Council of Tamil Naduand in case of persons enrolled in other states, they should submitproof of transfer of their enrollment to the Bar Council of TamilNadu and must be a Practising Advocate or Pleader in the High Courtor Courts subordinate thereto for not less than three years on thedate of publication of the notification or must be a AssistantPublic Prosecutor having not less than three years of experienceapart from age qualification or must be a fresh Law Graduatepossessing a degree of Law from a recognised University, who iseligible to enroll or enrolled as an Advocate and who has securedat the final degree examination of the degree in Law not less thanan average of 50% of marks in case of OC and in respect of reservedcategories an average of 45% of marks. It is also stated thereinthat fresh law graduates are those who have obtained a degree ofLaw within a period of three years prior to the date ofnotification and must have attained the age of 22 years and mustnot have completed the age of 27 years as on first July of the yearin which the selection for appointment is made. The said ageprescription subject to Rule 12(d)(ii), 52 and 53 of the GeneralRules of the Tamil Nadu State and Subordinate Services shall notapply in the recruitment of fresh Law Graduate i.e, upper agelimit. The learned counsel for the respondents further submittedthat the Honourable Supreme Court in an interim order dated21.4.2008 directed the Tamil Nadu Public Service Commission toinvite applications for 201 vacancies within three weeks and theentire process of selection should be completed within six monthsof issue of such notification. Relying on the above rule as well https://hcservices.ecourts.gov.in/hcservices/ as the order of the Supreme Court the leanred counsel for therespondents submitted that the petitioner, who is a Law Studenteven as on today, cannot have any right to apply for the post ofCivil Judge (Junior Division) as she is not a Law Graduate andenrolled as an Advocate.6.The question to be decided in this writ petition is thatwhether a Law Student can aspire for Civil Judge (Junior Division)post even before the Law Examination results are published and whohas not enrolled herself as an Advocate.7.Admittedly, petitioner is a final year Law Student of theGovernment Law College, Tirunelveli. Even according topetitioner's own affidavit, the final year examinations commencedonly from 19.5.2008 and the examinations were over by 2.6.2008.The notification was issued by the TNPSC fixing the cut-off date as'10.5.2008' pursuant to the interim order passed by the HonourableSupreme Court made in SLP(Civil) No.7882 of 2007 dated 21.4.2008(Controller of Examinations, T.N.P.S.C. v. Registrar General, HighCourt of Madras & Another). The order of the Supreme Court readsas follows:"Heard both sides.The High Court and the State of TamilNadu come to a broad understanding in regardto recruitment for 201 posts of Civil Judges,Junior Division, in the year 2008. They madeavailable a draft of what was agreed and thesame is extracted below after incorporatingthe correction agreed:It is respectfully submitted that aDivision Bench of the High Court of Madras,by order dated 23.03.07 in W.P.No.5583/2007,directed the Registry of High Court of Madrasas well as the Tamil Nadu Public ServiceCommission to adopt the procedure followed in2003 for the selection of Civil Judge (JuniorDivision) in 2007 also. On appeal by theTamil Nadu Public Service Commission, theHon'ble Supreme Court of India, by orderdated 07.05.07 in S.L.P.(C).No.7882/2007, hasstayed the order of the High Court of Madras,dated 23.03.07 in W.P.No.5583/2007. By orderdated 24.09.07, the Hon'ble Supreme Courtmade it clear that the said interim orderwould not come in the way of the petitioner(Tamil Nadu Public Service Commission) andthe Respondent (Registrar General, HighCourt, Madras), discussing the matter andfinding an acceptable solution as regards theselection of vacancies notified for the year2007. https://hcservices.ecourts.gov.in/hcservices/ The setting of question papers with keyanswers by the High Court and evaluation ofthe answers by Senior District Judges to benominated by the High Court were agreed uponby both parties. The request of the TamilNadu Public Service Commission forconstitution of 5 Boards for the purpose ofViva-Voce and nomination of 5 Hon'ble Judgesin this regard was discussed. The Hon'bleChief Justice will nominate five Hon'bleJudges for Viva-Voce and to depute the saidfive Hon'ble Judges daily (for half a day)for about two weeks for the said purpose.The notified vacancies already made upto30.09.2007 was 181 and it is revised to 201upto 31.12.08 in view of the fact that theselection process as well as training willtake more than 6 months. The Chairman aswell as the Secretary, Tamil Nadu PublicService Commission and the Registrar General,High Court, Madras, have agreed to notify the201 vacancies in the cadre of Civil Judge(Junior Division) upto 31.12.08 and start theselection process by issuance of notificationcalling for applications by the Tamil NaduPublic Service Commission.The above solution is arrived at for thepresent selection only, pending decision ofthe Hon'ble Supreme Court of India, forfuture selection process.The learned Additional Solicitor Generalsubmits that the Notification invitingapplications for 201 vacancies will be issuedwithin a period of three weeks and entireprocess of selection should be completedwithin six months of issue of suchNotification."From the above referred order of the Supreme Court it is evidentthat the vacancies existed and likely to arise upto 31.12.2008 willbe 201 in the cadre of Civil Judges (Junior Division). The SupremeCourt recorded the submissions of the learned Solicitor Generalthat notification inviting applications for the above saidvacancies will be issued within a period of three weeks and theentire process of selection would be completed within six months ofissue of such notification. To comply with the said statement,which was recorded in the above referred order, TNPSC issued thenotification inviting application for 201 posts on 10.5.2008. TheTNPSC is also bound to follow the Tamil Nadu State Judicial Service(Cadre and Recruitment) Rules, 2007, which is the ruleforselection, wherein the qualification prescribed for Civil Judge(Junior Division) reads as follows: https://hcservices.ecourts.gov.in/hcservices/ Civil Judges(JuniorDivision)By directrecruitment onthe basis ofwrittenexaminationand Viva-voceExaminationconducted bythe Tamil NaduPublic ServiceCommission inaccordancewith the Rulesspecified inthe Annexure-II to theseRules.(1) Must possess a Degree in Lawof a University in Indiaestablished or incorporated by orunder a Central Act or a State Actor an institution recognized by theUniversity Grants Commission, orany other equivalent qualificationand got enrolled in the Bar councilof Tamil nadu and in the case ofcandidates enrolled in the BarCouncils of other States theyshould submit proof of transfer oftheir enrollment to the Bar Councilof Tamil Nadu. (and)(2) Must be practicing as anAdvocate or Pleader in the HighCourt or Courts subordinate theretoand must have so practiced for notless than 3 years on the date ofthe Commission's Notification forrecruitment to the post. (or)Must be an Assistant PublicProsecutor having not less than 3years of experience as an Advocateand /or Assistant PublicProsecutor. (and)Age: Must have attained the age of25 years and must not have attainedthe age of 38 years in the case ofS.C./S.T. and 35 years in the caseof others * as on 1st July of theyear in which trhe vacancies in thepost are notified. (or)3) Must be a fresh Law GraduatePossessing a degree in law from arecognized University as mentionedin clause (1) above, who iseligible to be enrolled or enrolledas an Advocate and *who has securedan over all percentage of 50%marks in acquiring such a lawdegree in case of open categoriesand 45% marks in respect of otherreserved categories. Fresh LawGraduates are those who haveobtained the degree of Law within aperiod of three years prior to thedate of notification. (and)Age: Must have attained the age of22 years and must not havecompleted the age of 27 years as on1st July of the year in which theselection for appointment is made. https://hcservices.ecourts.gov.in/hcservices/ Rule 12(d)(ii), 52, 53 of theGeneral Rules for the Tamil NaduState and Subordinate Servicesshall not apply in the recruitmentof fresh Law Graduates (i.e.) Thisupper age limit prescribed aboveapplies to all categories.From the above said rule it is clear that a fresh Law Graduatepossessing a degree in law from a recognised University, who iseligible to be enrolled or enrolled as an advocate with 50% ofmarks for OC and 45% of marks in respect of other reservedcategories are eligible to apply if the candidate is within the agegroup of 22 to 27. The said position is made further clear by theDivision Bench of this Court in W.P.No.13896 of 2008 dated16.6.2008 (M.Radhakrishnan v. State of Tamil Nadu & Others). TheFirst Bench of this Court considered the issue as to whether afresh Law Graduate without having been enrolled as an Advocate, canbe treated to be qualified for submitting application for CivilJudge (Junior Division). The Division Bench held that the aspiringcandidate must not only be a fresh Law Graduate but also must beenrolled as an Advocate. Paragraph 4 of the Judgment of theDivision Bench reads as follows:"4.This Court finds that the aforesaidrules have been framed by the StateGovernment after due consultation with theHigh Court and it is expected that the HighCourt has duly applied its mind to theaforesaid question. We are also of theopinion that an applicant for the post ofCivil Judge (Junior Division) should not onlybe eligible for being enrolled, but mustapply for being enrolled. We find that thesaid view which we have taken is consistentwith the advertisement which has been issuedby the Tamil Nadu Public Service Commissionpursuant to the aforesaid notification."8.In the above circumstances and having regard to the factthat the petitioner has only completed the course and her result isyet to be announced, petitioner cannot make a grievance that thethird respondent arbitrarily fixed the cut-off date as 10.5.2008for satisfying the qualification as per the Recruitment Rule. Itis relevant to note that even if the results are declared onlyafter undergoing the process of enrollment and the actualenrollment one can get qualified for submitting application.9.Whether before inviting applications for selection inpublic employment, cut-off date shall be fixed, was considered bythe Supreme Court in the decision reported in (2000) 5 SCC 262(Bhupinderpal Singh v. State of Punjab). In paragraphs 12 to 14,the Supreme Court held as follows: https://hcservices.ecourts.gov.in/hcservices/ "12. All the appeals and the writpetitions have been taken up for hearinganalogously. The only question arising fordecision in this case is by reference towhich date the eligibility of the severalcandidates is to be judged and theconsequences flowing from the failure tosatisfy the eligibility test in the facts andcircumstances of the case.13. Placing reliance on the decisions ofthis Court in Ashok Kumar Sharma v. ChanderShekhar, A.P. Public Service Commission v. B.Sarat Chandra, District Collector andChairman, Vizianagaram Social WelfareResidential School Society v. M. TripuraSundari Devi, Rekha Chaturvedi v. Universityof Rajasthan, M.V. Nair (Dr) v. Union ofIndia and U.P. Public Service CommissionU.P., Allahabad v. Alpana the High Court hasheld (i) that the cut-off date by referenceto which the eligibility requirement must besatisfied by the candidate seeking a publicemployment is the date appointed by therelevant service rules and if there be nocut-off date appointed by the rules then suchdate as may be appointed for the purpose inthe advertisement calling for applications;(ii) that if there be no such date appointedthen the eligibility criteria shall beapplied by reference to the last dateappointed by which the applications have tobe received by the competent authority. Theview taken by the High Court is supported byseveral decisions of this Court and istherefore well settled and hence cannot befound fault with. However, there are certainspecial features of this case which need tobe taken care of and justice be done byinvoking the jurisdiction under Article 142of the Constitution vested in this Court soas to advance the cause of justice.14. In view of several decisions of thisCourt relied on by the High Court andreferred to hereinabove, it was expected ofthe State Government notifying the vacanciesto have clearly laid down and stated the cut-off date by reference to which the applicantswere required to satisfy their eligibility.This was not done. It was pointed out onbehalf of the several appellant-petitionersbefore this Court that the practice prevalentin Punjab has been to determine theeligibility by reference to the date of https://hcservices.ecourts.gov.in/hcservices/ interview and there are innumerable caseswherein such candidates have been seekingemployment as were not eligible on the dateof making the applications or the last dateappointed for receipt of the applications butwere in the process of acquiring eligibilityqualifications and did acquire the same bythe time they were called for and appeared atthe interview. Several such persons have beenappointed but no one has challenged theirappointments and they have continued to be inpublic employment. Such a loose practice,though prevalent, cannot be allowed to becontinued and must be treated to have beenput to an end. The reason is apparent. Theapplications made by such candidates as werenot qualified but were in the process ofacquiring eligibility qualifications would bedifficult to be scrutinised and subjected tothe process of approval or elimination andwould only result in creating confusion anduncertainty. Many would be such applicantswho would be called to face interview butshall have to be returned blank if theyfailed to acquire requisite eligibilityqualifications by the time of interview. Inour opinion the authorities of the Stateshould be tied down to the principlesgoverning the cut-off date for testing theeligibility qualifications on the principlesdeducible from the decided cases of thisCourt and stated hereinabove which have nowto be treated as the settled servicejurisprudence."(Emphasis Supplied)Thus, the respondents are justified in fixing the cut-off date as10.5.2008.10.The judgment of the Supreme Court reported in AIR 2002 SC1752 (cited supra) also states that fresh Law Graduates withoutthree years Bar experience can be permitted to participate in theselection, however, a Law student, who has not even passed the Lawdegree is not entitled to aspire for Judge post. The first andforemost requirement is to pass Law degree with required percentageof marks and should be eligible to enroll as an Advocate and mustbe an enrolled Advocate, on the date of the crucial date as fixedby the Government as well as the Recruiting Body. It is alsojudicially recognised that it is the prerogative of the Governmentto fix a cut-off date for any recruitment and merely because somewill be affected, fixing of cut-off date cannot be held arbitrary.The petitioner is also not justified in citing the analogy ofpermitting students, whose results are not announced, toparticipate in the entrance examinations for admission to https://hcservices.ecourts.gov.in/hcservices/ professional course. The logic behind the same is to avoid delayin completing the process of admission and to commence classes inthe professional and other courses as per the academic yearcalendar. Here the petitioner, after passing Law degree can enrolland commence practice as an Advocate. Hence no prejudice is causedto the petitioner by fixing the cut-off date as 10.5.2008 by therespondents.There is no merit in the writ petition to issue a writ asprayed for. The writ petition is dismissed. No costs. Connectedmiscellaneous petitions are also dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vrTo1.The Secretary to Government, Home Department,Fort St.George, Chennai - 600 009.2.The Secretary to Government, Law Department,Fort St.George, Chennai - 600 009.3.The Secretary, Tamil Nadu Public Service Commission,Omanthoorar Government Estate, Anna Salai, Chennai - 600 002.4.The Controller of Examinations, Tamil Nadu Public Service Commission,Omanthoorar Government Estate, Anna Salai, Chennai - 600 002.+ 1 CC To Mr.D.Sadhasivam, Advocate SR NO.39061 Order in W.P.No.14312 of 2008VM {CO}TP/22.7.08