D.Chitra v. The High Court Of Madras
2024:MHC:6525
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20-02-2024
CORAM
THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM And THE HONOURABLE MR. JUSTICE K.RAJASEKAR And WMP Nos.11265 and 11266 of 2023 1.D.Chitra 2.S.Tamilselvi .. Petitioners -vsThe High Court of Madras, Represented by the Registrar General, High Court Campus, Chennai-600 104.
.. Respondent Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of Certiorarified Mandamus, calling for the records
relating to the Impugned Notification No.41/2023 dated 08.03.2023 as amended on 03.04.2023 and quash the same insofar as Point No.2 Clause B is concerned and consequently direct the respondent to permit the petitioners to participate in the process of selection for the post of District Judge (Entry Level) - Direct Recruitment for Puducherry Judicial Service. For Petitioners :
Mr.N.Manokaran For Respondent :
Mr.B.Vijay
O R D E R
[ORDER OF THE COURT WAS MADE BY S.M.SUBRAMANIAM, J.] The issues raised in the present writ petition are no more res integra. The essential qualification as per the Recruitment Notification for selection to the post of District Judge (Entry Level) in Notification No.41/ 2023, which is under challenge in the present writ petition, reads as under:- "(B) ESSENTIAL QUALIFICATIONS (as on date of Notification) The Applicants should possess the following qualification:
(i) Must be a Citizen of India (ii) Must possess a Degree in Law of a University in India established or incorporated by or under a Central Act or a State Act or an Institution recognized by the University Grants Commission, or any other equivalent qualification and got enrolled as an Advocate under a State Bar Council established under the Advocates Act, 1961, And, For Practising (iii) (a) Must be practising as an Advocate or Pleader I Advocates/ in the High Courts or Supreme Court or Courts Pleaders / Subordinate thereto and must have practiced for a Assistant Public period of not less than Seven years on the date of the Prosecutors High Court's Notification for recruitment to the post. Or (b) Must be an Assistant Public Prosecutor having not less than Seven years of experience as an Advocate and/or Assistant Public Prosecutor on the date of notification.
Or (c) Must have practised for a period of not less than Seven years on the date of notification and continue to be a practising Advocate / working Assistant Public Prosecutor till the date of selection and appointment.
2. The term 'Practising Advocates/Pleaders/Assistant Public Prosecutors' are interpreted by the Supreme Court of India in the case of Dheeraj Mor vs. High Court of Delhi [(2020) 7 SCC 401], wherein in paragraphs 88 and 89, it has been held as under:- "88. This Court is of the opinion that the decision in Vijay Kumar Mishra [Vijay Kumar Mishra v. High Court of Patna, (2016) 9 SCC 313 : (2016) 2 SCC (L&S) 606] , as far as it makes a distinction between consideration, of a candidate's eligibility, at the stage of selection, and eligibility reckonable at the time of appointment, is incorrect. There is clear authority to the proposition that eligibility of any candidate is to be reckoned, not from the date of his or her selection, but in terms of the rules, or the advertisement for the post. In Ashok Kumar Sharma v. Chander Shekhar [Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18 : 1997 SCC (L&S) 913] , a three-Judge Bench of this Court held as follows : (Ashok Kumar Sharma case [Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18 :
1997 SCC (L&S) 913] , SCC pp. 21-22, para 6)
"6. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a wellestablished one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for application constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.
One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the person had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority Judgment.
is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan [Rekha Chaturvedi v. University of Rajasthan, 1993 Supp
(3) SCC 168 : 1993 SCC (L&S) 951] . The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview." This reasoning is similar to other decisions, such as U.P.
Public Service Commission v. Alpana [U.P. Public Service Commission v. Alpana, (1994) 2 SCC 723 : 1994 SCC (L&S) 742] and Bhupinderpal Singh v. State of Punjab [Bhupinderpal Singh v. State of Punjab, (2000) 5 SCC 262 : 2000 SCC (L&S) 639] . Therefore, the observation in Vijay Kumar Mishra [Vijay Kumar Mishra v. High Court of
Patna, (2016) 9 SCC 313 : (2016) 2 SCC (L&S) 606] that : (SCC p. 320, para 7) "the right of such a person to participate in the selection process undertaken by the State for appointment to any post in public service (subject to other rational prescriptions regarding the eligibility for participating in the selection process such as age, educational qualification, etc.) and be considered is guaranteed under Articles 14 and 16 of the Constitution."is not correct. With respect, the distinction sought to be made, between "selection" and "appointment" in the context of eligibility, is without foundation. A selection process begins with advertisement, calling for applications from eligible candidates.
Eligibility is usually defined with reference to possession of stipulated qualifications, experience, and age, as on the last date (of receipt of applications, or a particular specified date, etc.) Anyone fulfilling those eligibility conditions, with reference to such date, would be ineligible (sic eligible).
candidate concerned fulfils the requisite eligibility criteria, on the stipulated date. As pointed out by the three-Judge Bench decision, if the contrary is correct, one acquiring the stipulated qualifications subsequent to the prescribed date cannot be considered. Also, one not fulfilling the conditions cannot be allowed to participate, because, as held in Ashok Kumar Sharma [Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18 :
1997 SCC (L&S) 913] , if it were known, that such ineligible candidates can be considered, those who do not apply, but are better placed than the ineligible candidates who are allowed to participate, would be left out. Moreover, the authority publishing the advertisement/notification represents to the members of the public that it is bound by such representation.
89. As a result of the above discussion, it is held that Vijay Kumar Mishra [Vijay Kumar Mishra v. High Court of Patna, (2016) 9 SCC 313 : (2016) 2 SCC (L&S) 606] , to the extent that it is contrary to Ashok Kumar Sharma [Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18 :
1997 SCC (L&S) 913] , as regards participation in the selection process, of candidates who are
members of the judicial service, for appointment to the post of District Judge, from amongst the quota earmarked for advocates with seven years' practice, was wrongly decided. To that extent, Vijay Kumar Mishra [Vijay Kumar Mishra v. High Court of Patna, (2016) 9 SCC 313 : (2016) 2 SCC (L&S) 606] is hereby overruled."
3. Admittedly, the writ petitioners were not practising Advocates. As on the date of Notification, they were holding the post of Presiding Officer, District Consumer Forum.
4. That being so, the petitioners were found ineligible to participate in the process of selection.
5. In view of the judgment of the Supreme Court, cited supra, we do not find any infirmity in respect of the impugned Notification
No.41/2023 of the respondent dated 08.03.2023 as amended on 03.04.2023.
6. Accordingly, the present writ petition stands dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed.
(S.M.SUBRAMANIAM,J.) (K.RAJASEKAR,J.) 20-02-2024 Index : Yes/No Internet: Yes/No Speaking order/Non-Speaking order Svn
To The Registrar General, High Court of Madras, High Court Campus, Chennai-600 104.
S.M.SUBRAMANIAM, J.
AND K.RAJASEKAR, J.
Svn WP 11374 of 2023
20-02-2024