Madhya Pradesh High Court: In a batch of writ petitions filed to set aside the amendment in the Rule 7 of the Madhya Pradesh Judicial Service (Recruitment and Conditions of Service) Rules, 1994 (‘Rules, 1994 ’), for being unconstitutional, a division bench of Ravi Malimath, CJ.* and Vishal Mishra, J. has held that the impugned Rule is not ultra vires the constitution as it has a direct nexus with the object sought to be achieved of having quality dispensation of justice. Further, the Court held that the requirement of securing 70% marks in aggregate in the first attempt in the case of General and OBC candidates and 50% marks in the case of Scheduled Castes and the Scheduled Tribes candidates is not violative of Articles 14, 16 and 19(1)(g) of the Constitution of India.
Background:
Through the impugned amendment, an additional eligibility qualification for thepost of Civil Judge, Junior Division. was introduced, which stated that the candidate should either be a practising advocate for 3 years or an outstanding Law Graduate with a brilliant academic career having passed all exams in the first attempt with at least 70 percent in case of General and Other Backward Class (OBC), and at least 50 percent in case of reserved category.
Analysis and Decision:
I. Validity of the proviso to Rule 7(g) of the amended rules of 1994
After taking note of the history of Rules, 1994, the Court said that the instant impugned rule was brought about, to effectively implement para 32 of the judgment of the Supreme Court in All India Judges’ Association and others vs. Union of India , (2002) 4 SCC 247.
Further, the Court noted that what was done away by the Shetty Commission report and the aforesaid judgment is that it was no longer mandatory for a candidate to have a practice for three years. It did not deny the opportunity to a candidate who has practised for three years to compete in the exam.
Therefore, the Court said that the impugned rule was amended by giving an option to the candidates to apply for the post, if they had put in three years of practice at the Bar, which was originally the rule, or in the alternative, could apply as an outstanding law graduate with brilliant academic career having secured 70% marks in aggregate in the first attempt in the case of General and OBC categories and 50% marks in aggregate in the case of reserved category, in the 5 or 3 years of law degree course.
I.A Non-compliance of the judgment of the Supreme Court in the case of All India Judges’ Association v. Union of India (2002) 4 SCC 247
The Court stated that the plea of the petitioners could not be accepted since the direction given in All India Judges (supra)was to the High Court and State Government to amend the rules so as to enable a fresh law graduate, who may not have even put in three years of practice to be eligible to compete and enter the judicial service. The further direction was that for such fresh recruits, there should preferably be two years of training.
The Court viewed that a clarification would have been required, if the High Court or the State Government were of the view that either it is mandatory to have a three-year practice or/and it is not necessary to allow fresh graduates to practice. Fresh law graduates have not been prevented from competing in the exam. Furthermore, what was done away with in the aforesaid judgment was a mandatory condition of having a three-year practice. It does not debar a candidate who has a three-year practice at the Bar. The impugned amendment does not make it mandatory for a candidate to have a three-year practice. Furthermore, it does not prevent an advocate with a three-year practice from competing.
Thus, the Court held that the impugned amendment does not violate para 40 of All India Judges (supra).
I.B The requirement of securing 70% marks in aggregate violates Articles 14, 16 and 19(1)(g) of the Constitution of India
The Court said that the impugned amendment does not violate Article 14 of the Constitution of India since an equal opportunity has not been denied to the petitioners. Further, concerning Article 19(1)(g) of the Constitution of India, by the impugned amendment, the right to practise any profession, or to carry on any occupation, trade or business has not been affected. It is for the candidate to choose as to from what source, he would like to apply for the said post. The option given to him is twofold. He could either be an advocate who has practised for three years or an outstanding law graduate with a brilliant academic career.
The Court emphasised that the requirement is that a brilliant law graduate with a brilliant academic career can compete for the exam, which is intended to ensure that the finest of law graduates would turn out to be the finest of judges which in turn would lead to qualitative judgments being rendered. The requirement of obtaining 70% marks in aggregate is to ensure the desired object of enhancing the quality in the justice delivery system. By enhancing the quality of the judgments, the ultimate benefit directly goes to the citizens of this country. Therefore, to achieve this object, the instant amendment has been brought about.
Concerning the petitioners contention that they could not secure enough marks either because of Covid, the Court said that the grievance of hardship to the petitioners, cannot constitute a ground to read the impugned rule as being unconstitutional or ultra vires the Constitution. The impugned rule should be read for what it is intended and nothing beyond that. Further, the Court remarked that the scores of students fall within the requirements of the rule. Therefore, the contention of the petitioners is personal and not universal.
The Court further said that the reasonableness of the restriction has to be determined in an objective manner keeping in mind the interest of the public and not the interest of the petitioners or a restricted class of society. In the larger interest of the society, the attempt is to have outstanding law graduates with a brilliant academic career, to be eligible to compete for the exam. Therefore, the quality of the judge is extremely important to the object sought to be achieved of having quality dispensation of justice. That is the requirement of the society namely the litigants. Even if it runs contrary to the interest of certain individuals like the petitioners, the cause of the litigants would far outweigh the personal requirements of the petitioners.
The Bench while rejecting the petitioners contention that students in different universities secure different marks, which therefore leads to disparity in assessing the merit of the candidates, said that the result of obtaining a lower mark cannot necessarily be attributed to the professor or university but there is every possibility that the student does not deserve higher marks.
The Bench viewed that the eligibility criteria of 70% marks in aggregate is just and reasonable and no grievance can be made against the same.
Thus, the Court held that the impugned amendment does not violate Articles 14, 16 and 19(1)(g) of the Constitution of India.
I.C That the candidate should have cleared all exams in the first attempt, is arbitrary, unfair and unreasonable
The Court clarified that the requirement of the rule is that one should have passed in the first attempt. The requirement is not whether the candidate appeared in the main exam or in the supplementary exam. Thus, the Bench remarked that, to this extent, the rule has been kind to the students.
Further, the Court said that in cases where they were affected by Covid or for reasons of sickness or otherwise and were unable to take the exam, then the rule will not apply as long as they pass the subject in the first attempt in the subsequent exams.
Therefore, the Court held that the requirement that a candidate should have cleared all exams in the first attempt, is not erroneous, unreasonable and unfair.
I.D The impugned amendment has no nexus with the object sought to be achieved
After taking note of the fundamental duties enshrined in Part IVA of the Constitution of India, the Court said that it is the fundamental duty of the State to ensure that the rights of the citizens should not be curtailed, however, performance of duties by the State is primary and important. The right of the citizen to have a quality judgment is imminent as he is the litigant. Article 51A(j) of the Constitution.
The Bench said that the impugned amendment is intended to ensure excellence in the quality dispensation of justice. This is intended to achieve higher levels of excellence to achieve the goal of quality dispensation of justice. Therefore, the Court held that the impugned rule has a direct and strong nexus with the object sought to be achieved.
I.E The impugned amendment is retroactive/retrospective
After referring to Anushka Rengunthwar v. Union of India 2023 SCC OnLine SC 102 , the Court said that once a notification is issued, the right of the petitioner takes birth and ceases when the final select list or appointment orders are issued. The right does not continue beyond that at all. A new right takes place as and when a new notification is issued.
Therefore, the Court said that in the present case, the right of the petitioners is only so far as the instant amendment and the consequential notification is concerned. There is no pre-existing right that has continued which the petitioners could claim. The judgment has been misread and misplaced. Hence, the Bench rejected the contention of the petitioners that the impugned amendment has a retroactive/retrospective effect.
I.F The impugned amendment fails to satisfy the balancing and necessity test and also that it is not proportionate
The Court noted that to satisfy the balancing and necessity test the first requirement is that the impugned rule should be designated for a particular purpose and the second is that the measures undertaken to effectuate such a limitation, are rationally connected to the fulfilment of that purpose. The third component is that the measures undertaken are necessary and that there is no alternative measure which could achieve the same purpose but with a lesser degree of limitation.
After taking note of M.R.F. Ltd. v. Inspector Kerala Govt. (1998) 8 SCC 227 , the Court held that the impugned amendment falls within the principles as enunciated by the Supreme Court in the aforesaid judgment and that no abstract, general pattern or fixed principle can be laid down to judge the reasonableness of restrictions since the ultimate interest of the public at large has to be seen.
The Court said that there has to be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. The object intended behind this amendment is to enhance the quality of justice dispensation in Madhya Pradesh.
While addressing the requirement of balance between the importance of achieving an object and social importance of preventing the limitation on a constitutional right, the Court stated that the interest of the society far outweighs the interests of the petitioners and that the balance necessarily tilts in favour of the legislation, which is why the contentions of the petitioners could not be accepted.
I.H Impugned rule specifies a law graduate either in a three-year or a five-year course. It draws no distinction between these two classes of graduates, therefore, it is erroneous
The Court viewed that the difference sought to be made between law graduates is between meritorious and non-meritorious, and the reason for such distinction is to achieve the object of the amendment. The Court stated that ever since the Rules ,1994 were promulgated, the requirement of possessing a degree in law of any recognized university has been present and that there has never been a distinction made between a five-year and a three-year course. The same position is followed even in the impugned rule.
Keeping in mind the definitions of who is a law graduate in terms of the Advocates Act and the Bar Council of India Rules, the Court said the definition does not make a distinction between a law graduate who has completed a three year or five-year degree course. It defines a law graduate as a person who has obtained a bachelor’s degree in law from any University established by law in India.
II. Note (4) of Clause (1) of Part C of the advertisement dated 17-11-2023 is arbitrary
The petitioner contended that a candidate’s name may not appear as counsel in the order sheet due to numerous reasons. Here, the Court noted that Note (4) of Clause (1) of the advertisement seeks proof of practice to ascertain whether a candidate has been practicing for three years or not but that does not mean that order sheets are the sole criteria to determine this.
Thus, the Court said that this requirement cannot be said to be mandatory but only directory and that in case a candidate does not submit six order sheets, some other material to justify his claim must be provided.
III. Sub-rules (2), (3), (4), (5), (6) and (7) of Rule 5 of the Rules of 1994 are unconstitutional
The petitioner had contended that Rule 5(2) is erroneous since it does not speak of any procedure for the conduct of the exam. Further, in terms of sub-rule (3) and (4) of Rule 5, no relaxation has been provided to the Other Backward Class (‘OBC’) candidates, which has been provided to reserved categories namely the Scheduled Castes (‘SC’) and Scheduled Tribes (‘ST’)
The Court noted that the relaxation as provided to the SC and ST candidates arises out of the provisions of the Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994. (MPLS, 1994’). The said Act was promulgated to provide for reservation in the vacancies in public services and posts in favour of persons belonging to SC and ST and Other Backward Classes.
After taking note of Section 4(4 A) of the MPLS Act, the Court said the State Government may by general or special order make any provision in favour of the members of the SC and ST for relaxing the qualifying marks in any examination or lowering the standards of evaluation for reservation in matters of recruitment and promotion to any class or classes of services or posts in connection with the affairs of the State. Therefore, when sub-section (4-A) does not provide for relaxation of qualifying marks to the OBC candidates, there is no infirmity in the impugned Rule.
Therefore, the Court said that not only in the Act, but even in the Rules, the relaxation in qualifying marks has been provided only to SC and ST and not to the OBC candidates. That such relaxation in the minimum qualifying marks would be 10% as provided in the aforesaid Rules.
Thus, the Court rejected the portioners contentions that the sub-rule (5) of Rule 5 is unconstitutional, and that there is an absence of procedure when the order of merit is being prepared.
IV. Rules do not provide for reservation for candidates belonging to OBC, SC and ST categories at the preliminary stage
After taking note of Andhra Pradesh Public Service Commission v. Baloji Badhavath . the Court said that what is being done at the preliminary stage of any examination is only a qualifying examination and that there can be no reservation that could be provided at the qualifying stage.
The Court added that it is not an examination for merit but only to ascertain about the minimum eligibility of the candidates. Therefore, not providing reservation at that stage cannot be said to be unconstitutional.
The Court also said that the requirement of providing reservation to write the preliminary examination cannot be granted, but however after the result in the preliminary examination is announced then by applying the percentage of reservation on a ratio of 1:10 for each category, the topmost candidates in each category are entitled for the main examination.
V. That the amended Rule infringes Clause (9) of Articles 338, 338A and 338B of the Constitution since the statutory commissions have not been consulted
The Court noted that the aforesaid three Articles of the Constitution pertain to the National Commission for Scheduled castes, the National Commission for Scheduled Tribes, and the National Commission for Backward Class respectively.
The Court held that the reservations as granted to the Other Backward Classes, Scheduled Castes, and Scheduled Tribes had been maintained, which is why the contention that clause (9) of Articles 338, 338A, and 338B of the Constitution has been violated, cannot be accepted.
VII. Reservation to EWS candidates
The Court noted that the Administrative Committee of the Higher Judicial Service of the High Court of Madhya Pradesh, in its meeting, was of the opinion that providing a 10 percent reservation for EWS should not be granted, and this view was supported by the Full Court as well. Therefore, the Court held that the amended rules cannot be said to run contrary to the Rules of 1994.
VIII. Rule regarding postgraduate candidates
The Court, in this regard, said that the absence of a requirement of a higher qualification cannot presuppose the acquisition of a lower qualification, which is why the contention of the petitioner was rejected.
Thus, the Court dismissed the petitions, except to the following extent:
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The Court held that the Note (4) of Clause (1) of Part C of the advertisement dated 17-11-2023 is directory and not mandatory;
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The authorities were directed not to insist production of six order sheets/judgments per year of the candidate. However, the candidates were directed to produce such material in support of his/her plea regarding active practice.
[Devansh Kaushik v. The State of Madhya Pradesh, 2024 SCC OnLine MP 2272, Order dated 01-04-2024]
Advocates who appeared in this case:
For Petitioners — Adv. Utkarsh Kumar Sonkar, Adv. Rameshwar Singh Thakur, Adv. Vinayak Prasad Shah, Adv. Swapnil Khare, Adv. Arpit Kumar Oswal, Adv. Sakshi Pawar, Adv. Nishant Datt, Adv. Anuj Shrivastava, Adv. Siddharth R. Gupta, Adv. Aryan Urmaliya, Adv. Arun Kumar Pandey, Adv. Vijay Raghav Singh, Adv. Nitya Nand Mishra, Adv. Utkarsh Kumar Sonkar
For Respondents — DAG Bramhadatt Singh, Sr. Adv. Satish Chaturvedi, Adv. Eijaz Nazar Siddiqui
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