IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6 th DAY OF DECEMBER, 2012 BEFORE THE HON BLE MR. JUSTICE A.N.

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6 th DAY OF DECEMBER, 2012 BEFORE THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.18428/2012 C/W W.P.NOS.6380/2012, /2012 AND In W.P.NO.18428/2012 BETWEEN: /2011 (S-RES) Sri V.H. Mahesha, S/o. Honnegowda, Aged about 34 years, C/o. N. Sridhar, No.6, II Floor, Govindappa Lane, Thigalarapet, Bangalore PETITIONER (By Sri G.S. Aruna for M/s. Kesvy & Co. Advs.) AND: The Registrar General, High Court of Karnataka, Dr. Ambedkar Veedhi, Bangalore (By Smt. Manjula R. Kamadolli, HCGP)... RESPONDENT

2 2 W.P.No.18428/2012 is filed under Articles 226 and 227 of the Constitution of India, praying to quash the communication No.CJRC-1/2010 dated vide Annexure M issued by the respondent, etc. In W.P.NO.6380/2012 BETWEEN: Ms. Suneetha, Aged about 32 years, D/o. Sri Annaiah, Residing at 87/1, 2 nd Cross, KHB Colony, Gubbi Town, Tumkur District (By Sri R. Somasundara, Adv.) PETITIONER AND: 1. The Registrar General, High Court of Karnataka, Bangalore The Secretary, Civil Judges Recruitment Committee, High Court of Karnataka, Bangalore The Government of Karnataka, Represented by its Chief Secretary, Secretariat, Vidhana Soudha, Vidhana Veedi, Bangalore RESPONDENTS (By Sri B.V. Acharya, Senior Adv. for R1 & R2; Smt. Manjula R. Kamadolli, HCGP for R3)

3 3 In W.P.Nos /2012 BETWEEN: 1. Syed Baleegur Rahaman, S/o. Syed Kaleemulla, Aged 35 years, Assistant Public Prosecutor, Court of Civil Judge (Jr. Dvn.) and JMFC, Chintamani, Chikkaballapur District. 2. Madhu A.V. W/o. D. Dayanand, Aged 31 years, Assistant Public Prosecutor, Court of Civil Judge (Sr. Dvn.) and JMFC, Madhugiri, Tumkur District. 3. Rajashekar M. Tilanganji, S/o. Mallikarjun, Aged 31 years, Assistant Public Prosecutor, Court of Civil Judge (Jr. Dvn.) and JMFC, Siddapur Taluk, Uttara Kannada District. 4. Hayyalappa, S/o. Ningappa Balbatti, Aged 40 years, Assistant Public Prosecutor, Court of Civil Judge (Jr. Dvn.) and JMFC, Lingusugur, Raichur District. 5. D. Dayanand S/o. K.V. Devendrappa, Aged 31 years,

4 4 Assistant Public Prosecutor, Court of IIIrd Addl. Civil Judge (IInd Dvn.) and JMFC, Tumkur, Tumkur District. 6. Jagadeesh G. Biseratti, S/o. Gulappa Biseratti, Aged 35 years, Assistant Public Prosecutor Cum Assistant Government Pleader, Court of Civil Judge and JMFC, Hadagali, Bellary District. 7. J.R. Ramesh, S/o. Ramanna, age 38 years, Assistant Public Prosecutor Cum Assistant Government Pleader, Court of Civil Judge (Jr.Dvn.) and JMFC Court, Srinivaspur, Kolar District. 8. Raghavendra Raykar, S/o. Vasudeva, age 38 years, Assistant Public Prosecutor, Court of Additional Civil Judge (Sr.Dvn.) and JMFC., Chikkamagalur, Chikkamagalur District. 9. Thammanna C. S/o. Chowdegowda, Aged 37 years, Assistant Public Prosecutor, Court of Addl. Civil Judge (Sr.Dvn.) and JMFC., Puttur, Dakshina Kannada District.

5 5 10. Mallikarjunagouda Doddagoudar, S/o. Basavanagowda, Age 32 years, Assistant Public Prosecutor, Court of Civil Judge (Jr.Dvn.) and JMFC Court, Savanur Taluk, Haveri District. 11. Amaravathi, W/o. Dr. Nagappa B.H. Age 31 years, Assistant Public Prosecutor Cum Assistant Government Pleader, Court of Civil Judge (Sr.Dvn.) and JMFC, Savadatti, Belgaum District. PETITIONERS (By Sri Vikas Rojipura for M/s. Ravivarma Kumar Associates, Advs.) AND: 1. High Court of Karnataka, Bangalore Represented by its Registrar General. 2. The Recruitment Committee for Selection to the post of Civil Judges, Represented by Registrar General, The High Court of Karnataka, Bangalore State of Karnataka, Represented by its Secretary, Department of Law, Vidhana Soudha, Bangalore RESPONDENTS (By Sri B.V. Acharya Senior Adv. for R1 & R2; Smt. Manjula R. Kamadolli, HCGP for R3)

6 6 W.P.Nos /2012 is filed under Article 226 of the Constitution of India, praying to declare the resolution dated of R1, based on which APPs are being denied the opportunity to be considered for appointment as Civil Judges under the Karnataka Judicial Service (Recruitment) Rules 2004, in Annexure-A as amended by the Karnataka Judicial Service (Recruitment) (Amendment) Rules, 2011, in Annexure E, as illegal & void. In W.P.Nos /2011 BETWEEN: 1. Sri N.A. Jayachandra Reddy, S/o. late Ashwathanarayana Reddy, Aged about 35 years, Occ: Junior Law Officer, BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike, Bangalore, R/o. D.No.1396, Polytechnin Hostel Road, Behind KEB Quarters, Chintamani, Chikkaballapura District. 2. Sri S.K. Ramegowda S/o. Krishnegowda, Aged about 32 years, Occ: Junior Law Officer, BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike, Bangalore, R/o. No.159 R.M.L. Road, Sollepura, At post: Kikkeri HO, Tq: K.R. Pet, Mandya District. 3. Sri Basavaraj Y. Ambiger, S/o. Yamanappa Ambiger, Aged about 32 years, Occ: Junior Law Officer,

7 7 BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike, Bangalore, R/o. No.13, 4 th D Main, Bairaveshwaranagar, Nagarbhavi Main Road, Bangalore Smt. Chaitra Honnapura, D/o. Indudhar HOnnapura, Aged about 28 years, Occ: Junior Law Officer, BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike, Bangalore, R/o. No.402, 1 st Main, II Block, HBR Layout, Bangalore. PETITIONERS (By Sri I.G.Gachchinamath, Adv.) AND: 1. The State of Karnataka, By its Secretary to Department of Law, Justice and Human Rights Department, Vidhana Soudha, Bangalore The Under Secretary to Government, (Admn-I), Law, Justice and Human Rights Department, Vidhana Soudha, Bangalore The Registrar General, High Court of Karnataka, Bangalore

8 8 4. The Secretary, Civil Judges Recruitment Committee, High Court of Karnataka, Bangalore (By Smt. Manjula R. Kamadolli, HCGP) RESPONDENTS W.P.Nos /2011 are filed under Articles 226 and 227 of the Constitution of India, praying to call for the records and direct the respondents to modify the Notification specifying eligibility conditions vide Annexure E dated including the Junior Law Officers of BBMP under category B(3) and further permit the petitioners to take up the examination for the post of Civil Judge. These petitions having been reserved, the Court pronounced the following: O R D E R These petitions involve common questions of fact and law in the matter of direct recruitment to the posts of Civil Judges. In substance, petitioners have sought striking down the provision under Sl.No.3, Rule 4 of the Karnataka Judicial Service (Recruitment) Rules, 2004, as inserted by the Karnataka Judicial Service (Recruitment) (Amendment) Rules, 2011, (for short Rules, 2011 ), framed by the Governor of Karnataka in exercise of powers

9 9 conferred by Articles 233 and 234 of the Constitution of India. The petitioners have also sought incidental reliefs. 2. Petitioners in W.P.No.6380/2012 and W.P.Nos /2012 are working as Additional Public Prosecutors-cum-Additional Government Pleaders, having been recruited by the Government of Karnataka. Petitioner in W.P.No.18428/2012, a law graduate and enrolled as an advocate in the Karnataka State Bar Council, having been recruited as FDA in the Revenue Department of Government of Karnataka has joined Karnataka Government service. Petitioners in W.P /2011, being law graduates, after enrolling as advocates in the Karnataka State Bar Council, are now working as Junior Law Officers in Bruhat Bangalore Mahanagara Palike as its servants. 3. On , High Court of Karnataka, invited applications for recruitment to 152 posts of Civil Judge (the then Civil Judge) (Jr.Dn.). A Notification bearing No.CJRC 1/2010, Bangalore, dated the 6 th August, 2011

10 10 was published in the Karnataka Gazette. The qualification prescribed for direct recruitment is that the candidate must be holder of a degree in law and must have been enrolled as an advocate. For recruitment of in-service candidates, the minimum qualification prescribed is degree in law granted by a University and the candidate as on the last date fixed for receipt of applications, must not have crossed 43 years of age in case of he/she belonging to SC/ST and 40 years of age in case of others. It was made clear as per Sl.No.B(3)-Recruitment of in-service candidates of the said Notification that, no officer/official in service shall be eligible for appointment as Civil Judge unless he/she is working in the High Court and Courts subordinate to the High Court. 4. Petitioners possessing law degree and having enrolled as advocates, sent their applications as in-service candidates. While scruitinising the applications, it was noticed that the petitioners are not working in the High Court and Courts subordinate to the High Court and hence, the petitioners applications were rejected i.e., on the

11 11 ground that they fall outside the condition under the heading B- Recruitment of in-service candidates of the said Notification. Assailing the validity of Sub-Rule (3) of Rule 4 of the Karnataka Judicial Service (Recruitment) (Amendment) Rules, 2011 and also the aforesaid clause in the recruitment Notification, these writ petitions have been filed. 5. Statement of objections has been filed by the respondents in justification of the impugned Rule, the condition in the recruitment notification and also the decision taken by the Recruitment Committee to reject the applications of the petitioners. It has been stated that the impugned Rule is valid and consequently, the impugned condition in the recruitment Notification is also valid and since the petitioners do not fall within the meaning of service defined under R.2(f) of the Rules, they are not entitled to participate in the recruitment process undertaken as per the Recruitment Notification dated

12 12 6. Having perused the writ petitions and the counters filed, it is apparent that the dispute is as to the validity of the provision under heading B Recruitment of in-service candidates. The said Rule reads as follows: B Recruitment of in-service candidates :- (1).. (2). (3) No officer/official in service shall be eligible for appointment as Civil Judge unless he/she is working in the High Court and Courts subordinate to the High Court in the following cadres, namely:- (a) Deputy Registrars (b) Assistant Registrars / Public Relation Officer / Chief Librarian. (c) Section Officers / Court Officers / Senior Judgment Writers / Deputy Librarians. (d) Assistant Court Officers / Senior Assistants / Judgment Writers. (e) Stenographers / First Division Assistants / Assistant Librarians. (f) Chief Administrative Officer / Assistant Registrars. (g) Sheristedars and Senior Sheristedars. (h) Bench Clerks-Grade I and II.

13 13 7. Learned advocates appearing for the petitioners contended, that by prescribing the restriction/ limitation, that an applicant must be an officer/official in Karnataka Judicial Service working in the High Court and Courts subordinate to the High Court, the Rule has violated their fundamental rights guaranteed under Articles 14 and 16(1) of the Constitution of India. They submitted that on account of the amended Rule prescribing limitation, the petitioners who are law graduates also enrolled as advocates and being civil servants or persons working in local bodies, stand disqualified and the action amounts to hostile discrimination. They contended that there has to be equality of opportunity to all citizens in the matters relating to employment or appointment to any office under the State and that Article 14 forbids class legislation. Learned counsel further contend that the impugned Rule being ultra vires of the Constitution, be struck down. 8. Sri B.V. Acharya, learned Senior counsel, appearing for the High Court and the Recruitment

14 14 Committee, on the other hand, contended that when the statutory Rule is assailed on the ground that it contravenes Article 14, its validity can be sustained, if, two tests are satisfied i.e., (1) The classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and (2) That the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. He submitted that the classification on which statutory provision must be founded may be referable to different considerations or the objects sought to be achieved and that there must be some nexus between the basis of the classification and object intended to be achieved by the Statute. He submitted that the object of the Rules is to recruit suitable and proper persons to the judicial service in the State of Karnataka with a view to secure fair and efficient administration of justice and with that view, a policy decision was taken by the Full Court of the High Court, to permit recruitment of in-service

15 15 candidates by limiting the same to the officers/officials working in the High Court and courts subordinate to the High Court. He submitted that it is permissible for an employer to take a policy decision with the view to secure fair and efficient administration. He further submitted that the recruitment of in-service candidates was limited to inservice candidates, as above, keeping in view the decision in the case of Mallaraddi H. Itagi and others vs. High Court of Karnataka, by its Registrar General and another, ILR 2002 KAR 2093, which was upheld by the Apex Court in C.A /2003 on Recruitment of in-service candidates has been limited to those officers and officials working in the High Court and the Courts subordinate to the High Court. Is the impugned Rule valid? 10. There is no dispute that the petitioners are not in Karnataka Judicial Service working either in the High Court or the Courts subordinate to it. Sri Mallaraddi H. Itagi and others, either as Public Prosecutors or Senior

16 16 Public Prosecutors, who were in service of the State of Karnataka, had filed W.P.Nos to 47339/2001, aggrieved by a decision taken by the Committee constituted by the High Court for the purpose of considering the claims of the applicants for appointment to the posts of District Judges, wherein, the Committee had taken a decision that, Assistant Public Prosecutors/Senior Public Prosecutors/Public Prosecutors, are not eligible to be considered for recruitment to the posts of District Judges. After consideration of the rival contentions, the writ petitions were dismissed (See ILR 2002 KAR 2093). The said order having been assailed by the unsuccessful writ petitioners, was upheld by the Apex Court in C.A /2003, on It was found that the Additional Public Prosecutors/Public Prosecutors are regular Government servants, who have been employed under the State Government Rules called The Karnataka Department of Prosecutions and Government Litigations (Recruitment) Rules, 1982 and that they could not be said

17 17 to be the advocates while working as Additional Public Prosecutors or Public Prosecutors. 11. In the case of Union of India vs. Pushpa Rani and Others, (2008) 2 SCC (L&S) 851, the Apex Court has held as follows: 37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.

18 In the case of State of Gujarath and Others vs. Arvindkumar T Tiwari and Another, (2012) 9 SCC 545, the Apex Court has held as follows: 12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/ executive and cannot be the subject-matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility, etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of fair play, good conscience and equity. (Vide State of J & K Vs. Shiv Ram Sharma, (1999) 3 SCC 653 and Praveen Singh Vs. State of Punjab, (2000) 9 SCC Keeping in view the order/decision in the case of Mallaraddy H. Itagi (supra), the Full Court of the High

19 19 Court has taken the policy decision to place limitation in the matter of recruitment of in-service candidates, to the officers and officials working in the High Court and Courts subordinate to the High Court. Based on the recommendation of the High Court, the Rule was amended, providing for recruitment of in-service candidates, limited to the officers/officials working in the High Court and Courts subordinate to the High Court. 14. In the case of Hamdard Dawakhana and Another vs. The Union of India, AIR 1960 SC 554, while referring to the earlier decisions, the Apex Court has held as follows: 8. Therefore when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e., its subject matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.

20 The object of the Rules is to recruit suitable and proper persons to the Karnataka Judicial Service with a view to secure fair and efficient administration of justice. It is trite that the competent authority can prescribe qualifications for eligibility for appointment to the Service. With the said object in view, in the matter of recruitment of in-service candidates, limitation has been placed, since the officers and officials working in the High Court and Courts subordinate to the High Court, would be aware of the procedures and practices followed by the Courts in the matter of efficient administration of justice. This Court and the Apex Court, in the case of Mallaraddi H Itagi (supra), have highlighted as to how the Additional Public Prosecutors/ Public Prosecutors being Government servants, are not qualified to appear in the recruitment process to the posts of District Judges. The position of Junior Law Officers working in Bruhat Bangalore Mahanagara Palike or FDA in Revenue Department, cannot be different. The High Court, while recommending for

21 21 amendment of the Rule to provide for recruitment of inservice candidates, has kept in view the findings and observations made in the cases of Mallaraddi H Itagi (supra). In the said background, the policy decision taken by the High Court in the matter of limitation placed with regard to the recruitment of in-service candidates is reasonable and does not amount to hostile discrimination. There is rational basis in the matter of placing the limitation with regard to recruitment of in-service candidates is concerned. In my considered opinion, the impugned Rule meets the two tests, noticed supra. Consequently, the impugned Rule cannot be declared as ultra vires. The condition stipulated at Clause B- Recruitment of in-service candidates - Sl.No.3 of the Notification CJRC 1/2010 dated 6 th August 2011 is in consonance with the amended Rule 4 of the Rules. 16. There being no provision for submission of applications by the officers/officials working in Government Departments/local bodies etc., i.e., other than those

22 22 working in the High Court and Courts subordinate to the High Court, the rejection of applications of the petitioners by the Recruitment Committee is flawless. In the result, writ petitions stand dismissed, with no order as to costs. Ksj/- sac* Sd/- JUDGE