ALL INDIA JUDGES' ASSOCIATION AND ORS.versusUNION OF INDIA AND ORS.

          ALL INDIA JUDGES' ASSOCIATION AND ORS.                                A
                             v.
                 UNION OF INDIA AND ORS.

                            AUGUST 12, 1994

        [M,N. VENKATACHALIAH, 0. ANDS. MOHAN, J.]                               B

      Constitution of India, 1950-Articles 32 and 312-Kera/a Judicial Service
Rules, 1991-Ru/e 5(3) and 10( 1)-Kera/a Criminal Judicial Service Rules,
1973.

      The Supreme Court's directive that all the States prescribe mini-
                                                                                c
mum practice as a lawyer as a necessary qualification for recruitment to
the lowest rung in the judiciary is mandatory and three years' legal
practice is pre-requisition for recruitment. If the rules prescribe for a
longer standing at the Bar, that does not run counter to the directive.
Hence the requirement of five years standing prescribed by Rule 10(1) read      D
with rule 5(3) of Kerala Service Rules, 1991 is perfectly valid.

       In All India Judges Association v. Union of India & Ors., [1992] 1 SCC
119 and [1992] SCC 119; [1992] SCC (L&S) : (1992) 19 ATC 42, a number
of directions were issued by this Court for setting up All htdia Judicial
Service and bringing about unanimous condition of service and practice          E
for members of subordinate judiciary throughout the country. Review
Petitions were filed and after reviewing the judgment it was held in All
India Judges Association and Anr. v. Union of India & Ors., [1993] SCC
288 in paragraph 20 as under :
                                                                                F
      "It is hence, necessary that all the States prescribe the said minimum
practice as a lawyer as a necessary qualification for recruitment to the
lowest rung in the Judiciary"

     The State of Kerala filed IA 14 of 1994. In the above- mentioned
Review Petition and sought the following 3 clarifications :                     G
      i. Whether Rule 5 (3) of the Kerala Judicial Service Rules, 1991 can
be retained as it is?

     ii. Whether the directions contained in paras 20, 24 and 52(a) of the
judgment will apply retrospectively to the service candidates who are H
                                    613
    614                  SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A already working as judicial officers?
          iii. Whether five years legal practice prescribed as mm1mum
    qualification for appointment to the lowest category of judicial service
    namely the MunsilT Magistrates requires to be amended since Rule 10(1)
    prescribes five years standing for the Advocates, as .three years practice,
B   as per the directive issued by the Supreme Court?

          1A 15 was filed by the Kerala High Court Stall Association and Ors.
    and it was submitted that the requirement of legal practice for a minimum
    period of 3 years applies only in the case of direct recruitment from the
C   Bar and not for appointment by transfer from service personnel as
    provided under the Kerala Civil and Criminal Judicial Service Rules.
    Under Rule 10(1) of said rules a minimum 5 years standing at the Bar has
    been prescribed: It was strongly pleaded that the rule for appointment by
    transfer may be retained.

D         Dismissing partially the lAs, this Conrt

          HELD : 1.1. Minimnm Practice· of 3 years, is highly essential to be
    recruited to a judicial office. Daily Practice in the courts strengthens and
    develops not only the innate qualities of intellect and character but also
    those of patience, temper and resilience which are so important in the
E   practice of the law. A period of training prior to ascending the Bench will
    help to repair some of the gaps which may have been created by the
    demands of life at the Bar. [619-E; 618-G]                                 ·

          1.2. It is no wonder that lawyers through the ages In all countries
    have enjoyed esteem and respect as pillars of justice, as preserver of the
F   weak and poor against oppressors and tyrants, as upholders of the
    freedom and liberty; of human beings, as a sword for the guilty and a shield
    for the innocent. Therefore, legal practice for· a minimum three years is a
    must for recruitment in the lowest rung of judicial office. [619·D·E]

G         1.3. The principle of minimum practice of three years is already laid
    down by this court. If the Rules prescribe for a longer standing in the Bar
    that does not in any way, run counter to the said principle. It is open to
    the State of Kerala to prescribe a higher qualification as five years stand·
    ing at the Bar. [622-A]

H         1.4. It is hereby clarified the requirement of three years minimum
                  ALLINDIAJUDGES' ASSN. v. U.0.1.                       615

practice must be held to have come into force from 24.08.93. (622-C]           A
     All India Judges' Assn. V. Union of India, (1992] 1 SCC 119; [1992]
SCC L & S 9; (1992) 19 ATC 42 andAll IndiaJudges' Assn. v. Union of India,
(1993] 4 SCC 288: (1994] SCC (L&S) 148: (1993) 25 ATC 818, referred to
and relied on.
                                                                               B
      CIVIL ORIGINAL JUR~SDICTION: I.A. Nos. 14-16 of 1994.

                                    IN

      Review Petition No. 249 Of 1992.
                                                                               c
                                    IN

     Writ Petition No. 1022 of 1989.

      (Under Article 32 of the Constitution of India.)
                                                                               D
       Aruneshwar Gupta, M.K.D. Narnboodry, M. Veerappa, T.V.S.N.
Chari, B.B. Singh, Ms. A. Subhashini, Anip Sachthey, S.K. Agnihotri, S.R.
Setia, E.C. Agrawala, A.T.M. Sarnpath, s·. Parthasarathy, A.K. Panda, D.N.
Mukherjee, Gopal Singh, Krishnamurthy Swami, Ms. H. Wahi, A.S.
Bhasme, Pravir Ch~udhary, V. Krishnamurthy, Ms. Bina Gupta, P.K.               E
Manohar, S.K. Mehta, M.T.George, J.D. Jain, A. Sharan, S.K. Nandy, R.
Mohan, Sanjay Parikh, Ms. Sheela Goyal, M.M. Kashyap, I.Makwana, M.A.
Krishnamurthy, D.K. Sinha, T.C. Sharma, E.M.S. Anarn and Ms. Malini
Poduval for the appearing parties.

     The following Order of the Court was delivered :                          F
     All these I. As. can be dealt with under a common order.

      In All India Judges Association v. Union of India & others, (1992] 1
SCC 119, when directions were sought from this Court for setting up an
All India Judicial Service and for bringing about uniform conditions of        G
service and perks for members of subordinate judiciary throughout the
country, the following directions amongst other as mentioned in paragraph
63 of the said judgment were issued :

            (i) An all India Judicial Service should be set up and the Union
        of India should take appropriate steps is this regard.                 H
    616                  SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A              (ii) Steps should be taken to bring about uniformity in desig-
           nation of officers both in civil and the criminal side by March 31,
           1992.

               (iii) Retirement age of judicial officers be raised to 60 years
            and .appropriate steps are to be taken by December 31, 1992.
B
                (iv) As and when the Pay Commission/Committees are set up
            in the States and Union Territories, the question of appropriate
            pay scales of judicial officers be specifically referred and con-
          . sidered.

c               (v) A working library at the residence of every judicial officer
            has to be provided by June 30, 1992. Provision for sumptuary
            allowance as stated has to be made.

               (vi) Residential accommodation to every judicial officer has to
            be provided and until State accommodation is available, Govern-
D           ment should provide r.equisitioned accommodation for them in the
            manner indicated by December 31, 1992. In providing residential
            accommodation, availability of an office room should be kept in
            view.·

               (vii) Every District Judge and Chief Judicial Magistrate should
E           have a State Vehicle, Judicial Officers in sets of five should have
            a pool vehicle and others would be entitled to suitable loans to
            acquire two wheeler automobiles within different timeJimits as
            specified.

               (viii) In-service Institute should be set up within one Year at
F
            the Central and State or union Territory level."

          Review Petition were filed seeking review of the judgment. With
    regard to the qualific~tion for recruitment to judicial posts in the lower
    rung, it was held in All India Judge's Association and others v. Union of
G   India and others, [1993) 4 sec 288 in paragraph 20 as under :

               "It is hence, necessary that all the States prescribe the said
            minimum practice as a lawyer as a necessary qualification for
            recruitment to the lowest rung in the judiciary."

H           This review was done on 24.8.1993.
                    ALLINDIAJUDGES' ASSN. v. U.0.1.                         617

       In I.A. 14 of 1994, the State of Kerala is the petitioner. It seeks three   A
clarifications :

      {i) whether Rule 5(3) of the Kerala Judicial Service Rules, 1991 can
be retained as it is;

      (ii) Whether the directions contained in paras 20, 24 and 52(a) of the       B
judgment will apply retrospectively to the service candidates who are
already working as judicial officers;

      (iii) Five years legal practice prescribed as minimum qualification for
appointment to the lowest category of judicial service namely; Munsiff             C
Magistrates requires to be amended since Rule 10(1) prescribes five year
standing for the advocates as three years practice.

       I.A. No. 15 has been filed by the Kerala High Court Staff Association
and others again seeking clarifications that under Kerala Subordinate
Magisterial Service Rules, 1962, appointment to the cadre of Subordinate           D
Magistrate, the lowest rung in judicial hierarchy, was by transfer from
among prescribed categories These rules along with Kerala Civil Judicial
Service Rules, 1973 and Kerala Criminal Judicial Service Rules, 1973 came
into force with effect from 18.9.1973. Both these rules provided for appoint-
ment of service personnel to the lowest rung in each service from out of           E
category of persons having experience in law through courts without ac-
tually having practice at the Bar. On and from 1.1.1992, the Kerala Judicial
Service Rules integrated both the service i.e. Kerala Civil Judicial Services
and Kerala Criminal Judicial Services provided for direct recruitment by
transfer from among the categories like Assistant Public Prosecutor Grade
I, Grade II, Assistant Registrars, Private Secretary to the Chief Jui;tice and     F
other officers of the High Court.

      This method of appointment was not brought to the knowledge of
old this Court when this court was dealing with the fixation-of qualification
of appointment. Thm, it is submitted that the requirement of legal practice        G
for a minimum three years applies only in the case of direct recruitment
plan the Bar and not for appointment by transfer from service personnel
as provided under the Rules made in exercise of the power under Article
234 of the Constitution.

      I.A. No. 16. of 1994 is an application for intervention by the High.         H
    618                      SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A   Court of Kerala, represented by the Registrar, High Court of Kerala.

           Mr. Altaf ;\hmad, learned counsel appearing for the State of Kerala
    in I.A. No. 14 would urge that the prayers in the I.As are highly necessary
    so that the position of the service candidates may be settled. The officers
    enumerated under Rule 5(3) of Kerala Judicial Service Rules have
B   knowledge and are acquainted with substantive and procedural laws. They
    require to be treated on par with Advocates having experience in the Bar.

          Then again, under Rule 10(1) of said Rules, a minimum five years'
    standing in the Bar has been prescribed. Whether they could be retained,
c   is a matter which requires clarification.

          Mr. P.S. Poli, senior learned counsel appearing for the applicant in
    I.A. No. 16 of 1994 would strongly plead that having regard to the Rnles
    which contemplate the rule by transfer which is one of the sources of
    appointment, that rule may be retained because experience has shown that
D   these various categories of persons have not been found wanting either in
    integrity or capacity to do judicial work. In their cases, the requirement of
    three years minimum practice at Bar should not be insisted upon.

          We have given our careful consideration to the facts of the instant
    case. This Court in All India Judges case (supra) (review) held in para-
E   graph 20 as under:

                    "It is, hence, necessary that all the States prescribe the said
                 minimum practice as a lawyer as a necessary qualification for
                 recruitment to the lowest rung in the judiciary."

F          The above extract underscores the necessity of legal practice. In our
    considered view, such a practice is highly essential to be recruited to a
    judicial office. Daily practice in the courts strengthens and develops not
    only the innate qualities of intellect and character but also those of
    patience, temper and resilience which are so important in the practice of
G   the   law.A period of training prior to ascending the Bench will help to
    repair some of the gaps which may have been created by the demands of
    life at the Bar.

           It is stated in Samual Warren's Law Studies at page 112 as under :

H                   "Bar affords scope for the highest moral and intellectual ener-
                    ALL INDIA JUDGES' ASSN. v. U.0.1.                     619

         gies, while exposing littleness and meanness to contempt inevitable A
         and unutterable. It has special temptations, and exquisite trails;
         btit also resplendent rewards for the great and truehearted, who,
         resisting those temptations, and enduring those trails, turning to
         neither the right hand nor the left, nor poorly fainting by the way
         hold on to the end."
                                                                                 B
       As an advocate, a person has to present and expound law, as such
 he fulfils an important social need, namely, the upholding and preserving
 of society against onslaughts of selfish tyrants, be they individuals, com-
 ml)nities or the State. Blackstone in his introduction to commentaries, has
 spoken of law as "a science which distinguishes the criterion of right and      C
 wrong, which teaches to establish the one and prevent, punish or redress
-the other; which employs in its theory the noblest faculties of the soul, and
 exerts in its practice the cardinal virtues of the heart, a science which is
 universal in its use and extent, accommodated to each individual, yet
 comprehending the whole community." It is no wonder, then, that lawyers         D
 through the ages in all countries have enjoyed esteem and respect as pillars
of justice, as preserver of the weak poor against oppressors and tyrants, as
upholders of the freedom and liberty of human beings, as a sword for the
guilty a shield for the innocent.

      Therefore, we have no doubt in our mind that this qualification of         E
legal practice for a minimum three years is a must for recruitment in the
lowest rung of judicial office.

     The Kerala Judicial Service Rule 1991 came into force from 1.1.1992.
Rule 5 of the said Rules is as under :
                                                                                 F
            'Appointment: -(1) Appointment to a category specified in
         column (1) below shall be made by the method of appointment
         specified against that category in column (2):
                  Category           Method of appointment
                     (1)                        (2)                              G
 1.   Subordinate Judges/Chief Promotion from category 2.
      Judicial Magistrates.
 2.   Munsiff-Magistrates       Direct recruitment and transfer
                                in the manner provided in sub
                              · rule (3) of this Rule.
                                                                                 H
    620                  SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A             (2) Promotion to category 1 Shall be made from a select list
          prepared by the High Court from among the eligible officers on
          the basis of merit and ability. Merit and ability shall be assessed
          with reference to the entries in the personal files relating to the
          officers, penalties, if any, imposed on them, their performance as
          Judicial Officers and other relevant considerations. Seniority shall
B         be the criterion only if merit and ability are found to be ap-
          proximately equal. Officers superseded shall be informed of their
          supersession with reasons therefor. They shall be considered for
          promotion against after the expiry of six months.

c            (3) Out of every four vacancies arising in category 2, the first,
          second and the third shall be filled or reserved to be filled by direct
          recruitment and the fourth by recruitment by transfer from among
          the following categories.

          (i)        Assistant Public Prosecurots Grade I :
D                    Assistant Public Prosecutors Grade II :

          (ii)       Assistant Registrars,

             Private Secretary to the Chief Justice and other officers of the
          High Court in the same scale of pay of Assistant Registrars,
E         personal Assistant to the Chief Justice, Additional personal Assis-
          tant to.the Chief Justice Additional Personal Assistant to the Chief
          Justice,

          Section officers,
          Librarian,
F         Reference Librarian,
          Court Officers
          Court Fee Examiners,
          Accountant,
          Head Translator and
G         Selection Grade Shorthand Writers in the High Court of Kerala.

          (iii)      Under Secretaries,
                     Section Officers and·
                     Librarian in the Advocate General's Office.

H         (iv) Section officers and Librarian in the Law Department,
                   ALL INDIA JUDGES' ASSN. v. U.0.1.                      621

        Government Secretariat.

           (v) Sheristadars of District Courts, Additional District Courts,
        Special Courts, the office of the Motor Accidents claims Tribunals,
        the officer of the State Transport Appellate Tribunal and sub
        Courts. Head Clerks of the District Courts and Additional District
        Courts and Selection Grade Confidential Assistants in the Subor-         B
        dinate Civil Courts.

           (vi) Sheristadars of Chief Judicial Magistrate's Courts and
        Selection Grade Confidential Assistants in the Subordinate
        Criminal Courts.
                                                                                 c
            (vii) Full time lecturers of Government Law Colleges.

            (viii) Law Graduates working in the High Court, Subordinate
        Courts, Advocate General's Office and Law Department in the
        Government Secretariat, not covered by categories (i) to (vii) not       D
        less than ten years of total service in any one of the three offices
        or in the three offices taken together, of which not less than two
        years of service shall be after the acquisition of the law qualifica-
        tion.

            Explanation: A person who is otherwise qualified for appoint-        E
        ment but is not holding any of the posts enumerated in items (ii)
        to (viii) of this sub rule at the time of his application, shall be
        eligible for appointment, if he has held any one or more of such
        posts at any time for the prescribed number of years and is holding
        a post in a higher scale of pay in any of the offices from which
        appointment is to be made"                                               F

      Sub-Rule (3) of Rule 5 recruitment by. transfer is contemplated
bearing the first category of officers namely Assistant Public Prosecutor
Grade-I and Assistant Public Prosecutor Grade II. Those officers belong-
ing to categories II-VIII do not have minimum practice of there years at         G
the Bar. Where Assistant Public Prosecutor Grades I & II falling under
category I are eligible for recruitment to the lower rung in judicial service,
in that, they have three years practice at Bar, need to be decided in this
Review Petition. That question is left over.

      In All India Judges' Association & Ors. (supra) [review] this Court        H
    622                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A has clearly laid down the principle of minimum practice of three years. If
    the Rules prescribe for a longer standing in the Bar that does not, in any
    way, run counter to our judgment. It is open to the State of Kerala to
    prescribe a higher qualification as five years standing at the ~ar. In the
                                                                as
    instant case, the Rule prescribing five years .standing reads follows :
B                "10(1) : No Advocate shall be eligible for appointment to
             category 2 unless he is having practice at the Bar for a period of
             not less than five years and has not completed 35 years of age on
             the first day of January of the year in which applications for
             appointment are invited."
c                        (.Rest omitted as unnecessary )

          It is hereby clarified this requirement of three years minimum prac-
    tice must be held to have come into force 24.8.1993.

           Subject to the above observations, I.A. Nos. 14-16 of 1994 are dis-
D missed.
    A.G.                                              I. As partially dismissed.