M. Senthil Kumar v. Union of India

5. K. Dakshinamoorthy6. E.M.K. Siddharthar7. C. Roubavady8. R. Margaret Rosaline Respondents 5 to 8 impleaded as per suo motu order dt.27.11.07 in WP.No.35164/20079. Dr.K. Arul Respondent No.9 impleaded as per order dt.20.12.07 in M.P.3/07 in WP.No.35164/2007 ..Respondents 5 to 9 in WP.35164/07Petitions filed under Article 226 of the Constitution forissuance of writ of Mandamus directing the respondents 1 to 3 toframe rules relating to appointment of District Judges and startthe selection process according to law and directing therespondents to frame rules for the Union Territory of PuducheryState Judicial Service (Cadre and Recruitment) Rules in terms ofthe directions given by the Hon'ble Supreme Court of India inWrit Petition (C) No.1022 of 1989 dated 21.3.2002 and makeappointments for the post of District Judge as per the rules.For Petitioner inWP.33524/2007: Mr.S. PalanirajanFor Petitioner inWP.35614/2007: Mr.A. Thiagarajan,Senior Counsel for Mr. S. Rameshkumar,For Respondents 1 to 4: Mr.T. Murugesan Govt. Pleader (Puduchery) Respondent-5: Mr.K. Kannan for Mr.G.R. Swaminathan Respondent-6: Mr.R. Karthikeyan Respondents 7&8: Mr.T.P. Manoharan Respondent-9: Mr.S. Parthasarathy,Senior Counsel for Mr. V.C. Janarthanan. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTP.K. MISRA, JW.P.No.33524 of 2007 has been filed by a practisingAdvocate for issuance of writ of mandamus directing therespondents 1 to 3, namely, the Union of India, Union Territoryof Pondicherry and the Law Secretary of the Union Territory ofPondicherry to frame rules relating to appointment of DistrictJudges and start the selection process according to law. Suchwrit petition was filed on 15.10.2007 and was admitted on16.10.2007 by a learned single Judge of this Court. In theconnected M.P.No.1 of 2007, the prayer was for staying theselection process, wherein notice was directed to be issued on16.10.2007.2. Subsequently, W.P.No.35164 of 2007 was filed byanother practising Advocate for issuance of writ of mandamusdirecting the very same respondents as well as the RegistrarGeneral, High Court, Madras, who was impleaded as fourthrespondent, to frame rules for the Union Territory of PuducherryState Judicial State Service (Cadre and Recruitment) Rules interms of the directions given by the Supreme Court of India inWrit Petition (C) No.1022 of 1989 dated 21.3.2002 and makeappointments for the post of District Judge as per the saidrules. Such writ petition, which was filed on 13.11.2007, camebefore a Division Bench on 16.11.2007. It was directed thatnotice shall be served on the Government Pleader (Puducherry)representing Respondents 1 to 3 and the Addl. Government Pleaderrepresenting Respondent No.4. Thereafter, on the request of theGovernment Pleader (Puducherry), the matter was adjourned fromtime to time to enable him to file counter.3. While considering the question of interim stay, theGovernment Pleader of Puduchery had submitted that on the basisof the selection made by the High Court, appointment lettershave been issued by the Government and sent to the High Courtfor communication to four Subordinate Judges. At that stage,while granting interim stay of such appointment, this Court suomotu impleaded the four persons who had been selected asRespondents 5 to 8. A petition for vacating the stay had beenfiled by the newly impleaded Respondent No.5. Subsequently, https://hcservices.ecourts.gov.in/hcservices/ another Sub Judge filed a petition for being impleaded, whichwas allowed by a separate order. A counter was filed by theGovernment Pleader on behalf of Respondents 2 and 3. A separatecounter was filed by the Registrar General, High Court.Counsels who have appeared for the impleaded Respondents 5 to 8and the impleaded Respondent No.9 had submitted that there wasno factual dispute involved. Since the questions involved inthe writ petitions and in the miscellaneous petitions were sameand the entire dispute was required to be resolvedexpeditiously, on the consent of all the counsels appearing forthe parties, the writ petitions were heard on merit and judgmentwas reserved. At that stage, keeping in view the main issuesinvolved, the interim order of stay was modified and theRespondents 5 & 6, who had been selected as Serial Nos.1 and 2in the selection list, have been allowed to join by virtue ofthe order dated 20.12.2007, of course subject to the result ofthe writ petitions.4.The two petitioners are practising Advocates.According to the existing rules, one third of theposts can be filled up by direct recruitment from theBar. The main contention of the counsels appearingfor the petitioners is to the effect that though asper the judgment of the Supreme Court reported in AIR2002 SC 1752 (ALL INDIA JUDGES ASSOCIATION v. UNIONOF INDIA) a categorical direction had been issuedthat recruitment to the post of District Judge inhigher judicial service is to be filled up by directrecruitment from Bar and by promotion from among themembers of the Subordinate Judicial Service inparticular proportion and selection should be made byfollowing the particular procedure and appropriateRules and the matter should be reported to theSupreme Court, steps had not been taken to finalisethe rules. The prayer is made for issuing adirection to the official respondents and theRegistrar General of the High Court to finalise therules in accordance with the direction of the SupremeCourt and to complete the process of recruitment inaccordance with the Rules. Such direction had beenissued by the Supreme Court way back in 2002 and yetthe rules had not been finalised.5. https://hcservices.ecourts.gov.in/hcservices/

5. In the counter affidavit filed on behalf of theRespondents 1 to 3, i.e., the Union of India and the Governmentof Puduchery, it was indicated that rules under Article 309 ofthe Constitution had been framed as per G.O.Ms.No.10/96-LD dated21.3.1996 and as per such rules the method of recruitment to theDistrict Judge is by promotion on the basis of seniority-cum-merit from from the cadre of Civil Judges (Senior Division) andby direct recruitment from the Bar on the basis of viva voceexamination held by the High Court. It is further stated thatpursuant to the decision of the Supreme Court in AIR 2002 SC1752 (cited supra), the High Court, Madras has prepared and sentdraft Puducherry Judicial Service (Cadre and Recruitment) Rulesfor notification and such draft rules had been examined by theGovernment and certain clarifications were sought for from theHigh Court as per Letter No.48-12/PJS/07-LD dated 6.8.2007before notifying the said rules and necessary reply was awaitedfrom the High Court in this regard. While the matter stoodthus, the High Court had recommended promotion of four CivilJudges (Senior Division) [those persons have been impleaded asRespondents 5 to 8 in W.P.No.35164 of 2007] and on the basis ofsuch recommendation of the High Court, Puducherry Government hadissued letter of appointment indicating that such appointmentwas subject to the result of the pending writ petitions. 6. Fourth respondent, the Registrar General, HighCourt, in a separate counter affidavit, had indicated that onthe basis of the decision of the Supreme Court in AIR 2002 SC1752 (cited supra), rules were framed for recruitment of TamilNadu State Judicial Service and such rules have been alreadynotified by the Government of Tamil Nadu on 19.1.2007 and suchprocedure was followed in respect of recruitment to Tamil NaduState Judicial Service. So far as framing of rules for thePuducherry Judicial Services is concerned, it has been indicatedthat the Committee has finalised the draft rules and such ruleshave been sent to the Government of Puducherry on 21.4.2007 forissuance of necessary notification by the Government ofPuducherry. Subsequently, the Government of Puducherry byletter dated 6.8.2007 had sent various suggestions/observationsand sought for modification/revision of the draft rules and suchcorrespondence has been placed before the Committee and onfinalisation of such revised/modified draft rules by theCommittee, it would be sent to the Government of Puducherry for https://hcservices.ecourts.gov.in/hcservices/ issuance of notification. It has been further indicated asfollows :-"8. ... the existing cadre strength of DistrictJudges in the Puducherry Judicial Service is 6,including 2 ex-cadre post. They are :-1. Chief Judge, Puducherry2. II Additional District Judge, Puducherry3. III Additional District Judge, Puducherry4. Additional District Judge, Puducherry atKaraikal5. Judge, Family Court, Puducherry (ex-cadre post)6. Member Secretary, Puducherry Legal Services Authority, Puducherry (ex-cadre post).It has been further indicated :"9. ... that 2 Judicial Officers are alreadyfunctioning in the Puducherry Judicial Service in thecadre of District Judges. One Officer had beenappointed through direct recruitment and anotherOfficer is a promotee. In order to fill up theremaining 4 vacancies in the cadre of District Judges,urgently, due to administrative exigencies, necessaryproposals were mooted out by the Registry, on31.7.2007, pending approval and publication of thePuducherry Judicial Service (Cadre & Recruitment)Rules, 2007, based on the directions of the Hon'bleSupreme Court of India in its order, dated 21.3.2002,in W.P.(C)No.1022/1989.It is further indicated that selection has been made as perextant Rules and four Sub Judges have been selected and theGovernment of Puducherry had issued orders of promotion subjectto the result of the W.P.Nos.33524 and 35164 of 2007. It hasbeen further indicated :- https://hcservices.ecourts.gov.in/hcservices/ "15. . . . that the draft Puducherry JudicialService (Cadre & Recruitment) Rules, as alreadyfinalised by the High Court, are yet to take a finalshape as various observations/suggestions made by theGovernment of Puducherry and referred to this Hon'bleHigh Court are still under the consideration of thisHon'ble High Court. As the process is expected to takesome more time for issuance of notification of therevised/modified draft Puducherry Judicial Service(Cadre & Recruitment) Rules, after getting the views onthe observations/suggestions made by the PuducherryGovernment, in order to cope with the administrativeexigencies, the proposal to fill up 4 vacancies in thecadre of District Judges was mooted out."7. Out of the four selected candidates, who have beensuo motu impleaded as Respondents 5 to 8, Respondent No.5 hasfiled a petition for vacating the stay wherein it is indicatedthat selection has taken place on the basis of the existingrules by scrutinising the judgments of various incumbents. Ithas been further stated that the prayer in the form in which ithas been sought for cannot be granted and no Mandamus can beissued to the Government to frame rules in a particular manner.8. In the petition filed by Respondent No.9, aSubordinate Judge, who was placed 6th in the selection list, ithas been indicated that as per the decision of the SupremeCourt, promotion has to be effected by way of merit-cum-seniority and upto 50% of the total posts by way of merit-cum-seniority and, purely on the basis of merit from among thesubordinate service in the ratio of 25% and the rest 25% is tobe recruited through direct recruitment from among the Barmembers. Such procedure having been not followed, selection ofall the four vacancies through conventional promotion isobviously against the decision of the Supreme Court.9. In the course of hearing, the learned GovernmentPleader appearing for the Puducherry Government and also thelearned counsels appearing for Respondents 5,6 and 7 & 8submitted that since new rules had not been framed there was noembargo in following the procedure contemplated under the https://hcservices.ecourts.gov.in/hcservices/ existing rules. Moreover, the decision of the Supreme Courtitself has made it clear that any dispute relating toimplementation of such direction of the Supreme Court can beraised only before the Supreme Court and not by filing a writfor issuing Mandamus under Article 226 of the Constitution ofIndia. It is also submitted that at any rate no Mandamus can beissued to the Government to frame rules in a particular manner.10. As per the existing rules, recruitment to the postof District Judge is by way of promotion from the SubordinateJudicial Service on the basis of seniority-cum-merit. The rulesalso provide that upto one third of the vacancy can be filled upby way of direct recruitment from the Bar on the basis of vivavoce.11. At the time of hearing of the case, the entirefile relating to selection process was made available. In thepresent case, we are confining our attention to the mode andmethod of recruitment rather than the selection process itself.As apparent from the counter affidavit filed by the fourthrespondent, so far as recruitment to Tamil Nadu Judicial Serviceis concerned, new rules have been framed strictly in accordancewith the directions issued by the Supreme Court. So far asPuducherry Government is concerned, the High Court office hadsent the draft rules for publication and at that stage certainsuggestions / queries had been received from PuducherryGovernment. While the proposal relating to promotion of fourSubordinate Judges was placed, it was never indicated in theOffice Note prepared by the Registry that in fact draft rulesfor Puducherry Government had been prepared and finalised by theHigh Court and were pending before the Puducherry Government.Even though there is a passing reference to the decision of theSupreme Court, no where it is indicated that similar rules hadbeen framed for Tamil Nadu Judicial Service. 12. In our considered opinion, if all the appointmentswould be allowed to be made on the basis of the suggestionsgiven by the High Court, the direction given by the SupremeCourt would be directly contravened. https://hcservices.ecourts.gov.in/hcservices/

13. At this stage, it is necessary to refer to theobservations made by the Supreme Court. It was observed :"27. . . . . While we agree with the ShettyCommission that the recruitment, to the Higher JudicialService i.e. the District Judge Cadre from amongst theadvocates should be 25 per cent and the process ofrecruitment is to be by a competitive examination, bothwritten and viva voce, we are of the opinion that thereshould be an objective method of testing thesuitability of the Subordinate Judicial Officers forpromotion to the Higher Judicial Service. Furthermore,there should also be an incentive amongst therelatively junior and other officers to improve and tocompete with each other so as to excel and get quickerpromotion. In this way, we expect that the calibre ofthe members of the Higher Judicial Service will furtherimprove. In order to achieve this, while the ratio of75 per cent appointment by promotion and 25 per cent bydirect recruitment to the Higher Judicial Service ismaintained, we are, however, of the opinion that thereshould be two methods as far as appointment bypromotion is concerned: 50 per cent of the total postsin the Higher Judicial Service must be filled bypromotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts shoulddevise and evolve a test in order to ascertain andexamine the legal knowledge of those candidates and toassess their continued efficiency with adequateknowledge of case law. The remaining 25 per cent ofthe posts in the Service shall be filled by promotionstrictly on the basis of merit through the limiteddepartmetal competitive examination for which thequalifying service as a Civil Judge (Senior Division)should be not less not less than five years. The HighCourts will have to frame a rule in this regard.. . . https://hcservices.ecourts.gov.in/hcservices/

39. The States as well as the Union of India shallsubmit their compliance report by 30th September, 2002.Case be listed thereafter for further orders.40. Any clarification that may be required inrespect of any matter arising out of this decisionwill be sought only from this Court. The proceedings,if any, for implementation of the directions given inthis judgment, shall be filed only in this Court andno other Court shall entertain them."14. The aforesaid observations, which are more or lessperemptory in nature, would be obviously flouted if the presentselection is allowed to be implemented. It is ratherunfortunate that the Registry, while placing a note relating topromotion of Subordinate Judges, did not indicate even remotelythat the draft rules in accordance with the direction of theSupreme Court had been approved by the High Court and had beensent to Puducherry Government for notification nor it had beenindicated that certain clarifications had been sought for by thePuducherry Government. It is of course true that it has beenhighlighted in the counter affidavit that there was necessity tofill up the post urgently, but from the counter it is apparentthat the draft rules had been sent long before andclarifications had been sought for by the Puducherry Governmentin August and yet the Registry instead of finalising the matter,initiated proposal relating to completion of the process ofappointment on the basis of the existing rules. It is also veryinteresting to note that the rules had already been finalisedfor Tamil Nadu Judicial Service. It is no doubt true thattechnically speaking the extant rules had not yet become extinctin spite of the peremptory nature of the direction issued by theSupreme Court and in such a restricted sense there may not beany legal flaw in completing the process of recruitment inaccordance with the existing rules. However, having regard tothe fact that more than five years have lapsed from the datewhen the Supreme Court had issued the direction and at any ratedraft rules had been made, heaven would not have fallen if therecruitment to such post would have been postponed by a fewweeks or may be even couple of months. This is more so keepingin view the limited number of posts available under thePuducherry Judicial Service. If such flawed recruitment would https://hcservices.ecourts.gov.in/hcservices/ be allowed to continue, the possibility of making recruitment inaccordance with the direction of the Supreme Court would befrustrated for a considerable length of time, may be for thenext decade or so. It would not be in the interest ofadministration of justice to allow such glaring violation of thedirection of the Supreme Court.15. Learned counsel appearing for Respondents 5 to 8and even to some extent the Government Pleader appearing forRespondents 1 to 3 by inviting our attention to the observationmade in para 40 of the judgment, submitted that as per theobservation of the Supreme Court, the matter can be agitatedonly before the Supreme Court.16. It is indeed unfortunate and rather surprisingthat inspite of such peremptory direction contained in paras 27and 39, matters have been allowed to linger in their ownmeandering way. The latter part of the observation, of course,makes it clear that appropriate clarifications or directionsregarding implementation are to be sought for from the SupremeCourt. The contention raised presents a Hobson's choice so faras the High Court is concerned. Non-compliance of thedirection given by the Supreme Court within the time frameindicated prima facie tantamounts to disobedience of suchjudgment. On the other hand, the observations make it clearthat if any clarification and directions are required in thematter, it should be only placed before the Supreme Court. 17. In our considered opinion, since there is nocontroversy relating to the directions given and there is noquestion of seeking any clarification, we may justifiably cometo the conclusion that action should be taken in accordancewith the positive directions given and not in direct conflictwith the clear observation of the Supreme Court. In such viewof the matter, we prefer to follow our judicial conscience andobserve that selection process to the extent it is contrary tothe clear observation of the Supreme Court should not be allowedto be completed. In this context, we think it appropriate toobserve that in view of the provisions contained in Articles 141and 144 of the Constitution of India, it is our constitutionalobligation, nay duty, to see that the judgment and directions ofthe Supreme Court are observed and obeyed in letter and inspirit. We may also observe that it ill-behoves the https://hcservices.ecourts.gov.in/hcservices/ Respondents 1 to 3 to raise such a contention, particularly whensuch respondents had the primary obligation to comply with thedirection of the Supreme Court. 18. Learned counsel appearing for Respondent No.5 hasraised a question that no Mandamus can be issued for theaforesaid purpose. He has placed reliance upon two decisions ofthe Supreme Court reported in AIR 1982 SC 710 (A.K. ROY v. UNIONOF INDIA AND ANOTHER) and AIR 1988 SC 1768 (AELTEMESH REIN,ADVOCATE, SUPREME COURT OF INDIA v. UNION OF INDIA AND OTHERS). 19. We do not think the ratio of such decisions can bemade applicable to the peculiar facts and circumstances of thepresent case in view of the categorical observations made by theSupreme Court in AIR 2002 SC 1752 (cited supra) and in view ofthe provisions contained in Articles 141 and 144 of theConstitution. 20. In the present case, in view of the cleardirections and in view of the provisions contained in Articles141 and 144, it is the obligation of all the functionaries toimplement the direction of the Supreme Court. In such a senseit is not that a Mandamus is being issued for the purpose offraming a rule but the purpose of the present writ petition isto issue a direction to the authorities concerned to comply withthe directions already given by the Supreme Court. Thedecisions cited are therefore clearly distinguishable. 21. Next question is regarding the relief to begranted. It is no doubt true that the prayer in the presentwrit petitions is for issuing a writ of mandamus to frame therules. The ancillary prayer is for making recruitment inaccordance with such rules, in other words, in accordance withthe principles contemplated by the Supreme Court.22. Having regard to the facts and circumstances, itcan be said that, while issuing a direction to the Respondents 1to 4 for finalising the Rules, an ancillary direction can alsobe given that the recruitment shall be made in accordance withsuch amended Rules. Accordingly, Respondents 1 to 4 aredirected to finalise the Rules in accordance with the directionsissued by the Supreme Court within a period of 30 days from the https://hcservices.ecourts.gov.in/hcservices/ date of receipt of the order and they are further directed tomake the recruitment in accordance with such rules to benotified.23. While considering the question of stay, we hadmodified the interim order of stay and had permitted Respondents5 & 6 to join the post without prejudice to the contentionsraised in the writ petitions. We find that as per the directionof the Supreme Court, upto three persons can be promotedthrough the conventional method of promotion, namely, the merit-cum-seniority and only one such person has been promotedearlier. Accordingly, even if the rules are modified, obviouslythere is scope for promoting two more on the basis of merit-cum-seniority. Accordingly, the Respondents 5 & 6 are allowed tocontinue. This, however, is without prejudice to thecontentions, if any, to be raised by any of the otherrespondents relating to process of the selection itself. Inother words, if any of the Sub Judge has any grievance that heshould have been selected ahead of the Respondents 5 & 6, itwould be open to such Sub Judge to raise such question beforethe appropriate forum and such question is not decided by us.24. Subject to the aforesaid directions andobservations, both the writ petitions are allowed to the extentindicated above. No costs.DpkSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Chief Secretary, Union of India, Rep. by Lt. Governor, Puduchery. https://hcservices.ecourts.gov.in/hcservices/

2. The Chief Secretary, Union Territory of Puduchery, Puduchery.3. The Law Secretary, Union Territory of Puduchery, Puduchery.4. The Registrar General, High Court of Judicature at Madras, Chennai.+ 2 ccs to Mr. R. Karthikeyan, Advocate SR 5185+ One cc to Mr. G.R. Swaminatha, Advocate SR 5794+ One cc to Mr. S. Ayyadurai, Advocate SR 5310+ One cc to Mr. S. Ramesh Kumar, Advocate SR 5311+ One cc to Mr. T.P. Manoharan, Advocate SR 5275+ 3 ccs to The Senior Govt Pleader-cum-Senior Public Prosecutor, Puduchery, SR.5166 to 5168+ One cc to Mr. S. Palanirajan,SR.5439CU (co)sg 08/02/08 Common Judgment inW.P.Nos. 33524 & 35164 of 2007 04.02.2008.