SC strikes down Rajasthan rules on lawyers' posting

By T. Padmanabha Rao

NEW DELHI, JULY 18. The Supreme Court has struck down as unconstitutional rules 8 (ii) and 15 (11) of the Rajasthan Higher Judicial Service rules 1969 - RHJS rules which require that only those advocates are entitled to be considered for ``direct recruitment'' to Rajasthan Higher Judicial Service who have practised in Rajasthan High Court (HC) or Courts subordinate thereto for a period of not less than seven years and thereby debarring all other advocates practising outside the State of Rajasthan though within the territory of India.

``If for appointment in subordinate judicial service (for the post of Munsif) neither there is any requirement of knowledge of local laws nor regional language, we (the Bench) really fail to understand how the same is required for higher judicial service in the very same State, i.e., in Rajasthan,'' the Bench observed.

Delivering the judgment, Mr. Justice B.N. Agarwal ruled that the impugned RHJS rules were violative of articles 14 and 16 of the Constitution. Article 14 deals with `equality before law' while article 16 provides ``equality of opportunity in matters of public employment''.

``From Kashmir to Kanyakumari, the country is one and there is no intelligible differential which distinguishes advocates practising within the State of Rajasthan and those practising outside Rajasthan but within the territory of India,'' the Bench observed.

The Bench which included Mr. Justice G.B.Pattanaik made clear that ``this judgement will not affect any appointment made prior to this date under the rules which have been found to be invalid'' and the HC of Rajasthan would be well-advised to take up the process of selection (for appointment to the Higher Judicial Service) already started do novo in accordance with this judgment and will now recommend the name of the appellant (advocate hailing from Bareilly in Uttar Pradesh) to the Governor of Rajasthan for making appointment to RHJS against one of the existing vacancies.''

The Bench set aside a five-Judge Bench verdict of the State HC which, by a majority of three to two, upheld the validity of the impugned RHJS rules.

The Bench, in allowing an appeal from the appellant - advocate, said that ``it would be just and proper to direct the HC to recommend his name to the Governor for appointment to the RHJS against one of the existing vacancies as according to the stand taken by the HC, posts are still vacant.'' The appellant who was a practising advocate in Bareilly (U.P), applied in response to the advertisement issued by the Rajasthan HC in 1996 considering himself to be eligible for a post in the cadre of RHJS.

The Bench noted that the appellant who was found eligible by the selection committee, appeared in the interview, found fit by it and recommended for appointment to the RHJS but could not be appointed as the Full Court (of the HC on the administrative side) found that he was not eligible (under the impugned rules) and one post for him was kept reserved by virtue of an interim order of the HC, but in view of dismissal of the writ application (from the appellant by the HC) the said post had been filled up by another suitable candidate.

The Bench held that the ``Division Bench and Full Bench decision of the Rajasthan HC (in earlier related cases in this regard) are manifestly wrong and if the law laid down therein is approved, the same would be unfair to members of the bar practising in all the courts throughout the country, excepting the State of Rajasthan.''

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