Full Judgment Text
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PETITIONER:
SANJAY DHAR
Vs.
RESPONDENT:
J&K PUBLIC SERVICE COMMN. & ANR.
DATE OF JUDGMENT: 10/10/2000
BENCH:
R.C.Lahoti, K.G.Balakrishnan
JUDGMENT:
R.C. Lahoti, J.
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Leave granted. The appellant, having passed LL.B. (3
years degree course) from Kashmir University, was enrolled
as an advocate by the High Court of Jammu & Kashmir with
effect from 29.1.1990. In October 1990, the appellant
shifted his place of practice to Delhi and started
practicing exclusively in the High Court of Delhi. In
December 1992, applications were invited by J&K Public
Service Commission for selection and appointment to the post
of Munsif. One of the eligibility conditions, as laid down
by Rule 9 of J&K Civil Service (Judicial) Recruitment Rules,
1967 was that a candidate for recruitment to the service
must have put in at least two years practice at Bar by the
date on which he submits his application for such
recruitment and must produce a certificate to this effect
from the District Judge within the local limits of whose
jurisdiction he practices at the Bar. As the appellant was
practicing in the High Court of Delhi, he made an
application to the Registrar which according to him was the
best authority suited to issue the certificate and the
Registrar of the High Court of Delhi issued a certificate
dated 22nd December, 1992 which recited ___ On the basis of
material/document made available to this court it is
certified that Shri Sanjay Dhar, Advocate . who was
enrolled as an Advocate with Bar Council of Jammu & Kashmir
in January, 1990 is practicing as Advocate in Delhi since
October, 1990. The certificate was submitted by the
appellant alongwith his application to the Public Service
Commission. On 12.3.1993, the J&K PSC informed the
appellant that his application was deficient as actual
practice certificate from District & Sessions Judge based on
his personal knowledge or official records of courts giving
relevant dates of actual practice was not produced. The
appellant placed the certificate issued by the Registrar,
High Court of Delhi before the District & Sessions Judge,
Delhi, who on 17.3.1993 counter-signed the certificate under
his hand and seal. The same was submitted to the PSC.
However, the PSC did not feel satisfied with the certificate
and in July, 1993 the appellant was informed that his
application was rejected for non-production of a valid
actual practice certificate as required by Rule 9
above-said.
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On 19.7.1993, the appellant filed a civil writ
petition before the High Court of J&K laying challenge to
the communication of the PSC and the action of the PSC
excluding the appellant from participating in the process of
selection. On 21.7.1993, the High Court passed an interim
order directing the PSC to permit the appellant to appear in
the examination on the basis of certificate of practice
filed by the appellant at his risk and responsibility. The
result of the appellant was directed not to be declared
except under the orders of the court. The appellant
participated in the examination conducted by the PSC under
the interim orders of the court. On 21.9.1994, on a prayer
made by the appellant, the High Court passed yet another
interim order in continuation of the earlier order dated
21.7.1993 directing the result of written examination taken
by the appellant to be declared. On 28.9.1994, the result
was declared. The appellant had qualified at the written
examination entitling him for participation in the
interview. The appellant apprehended that the PSC may deny
the appellant an opportunity of participating in the
interview and hence he once again knocked the doors of the
High Court and the High Court made an interim direction, in
continuance of the earlier ones, allowing him participation
in the interview as also declaration of the result of
selection. It was further directed that if the appellants
name found place in the select list of candidates and if he
fell within the zone of consideration for appointment, the
High Court should carry the recommendation of J&K PSC to its
logical conclusion by issuing appropriate orders; the
appellant if appointed as Munsif, the appointment should
remain subject to ultimate outcome of the petition.
The above-said interim order dated 21.9.1994 made by
the learned Single Judge was put in issue by J&K PSC by
filing a Letters Patent Appeal. As the main ground of
challenge raised by J&K PSC was that the appellant did not
satisfy the test of actual practice, the appellant, while
offering opposition to the LPA filed by J&K PSC, also
submitted a list of a few cases in which he had appeared in
the High Court of Delhi, duly certified by the
Superintendent of Delhi High Court.
It appears that in between the select list had been
finalised by the PSC and forwarded to the High Court. As
the appellant was not sure of his position in the select
list he filed another writ petition in the High Court,
registered as CWP No.596/94, seeking a direction to the J&K
PSC and the State of J&K to make available a certified copy
of the list of selected candidates forwarded by the J&K PSC
to the Law Department of the State. The LPA and the writ
petition filed by the appellant were both taken up for
analogous hearing. On 9.2.1995, the Court passed an interim
order staying the operation of the order dated 21.9.1994
passed by the Single Judge but at the same time directing
that one vacancy in the open merit category shall be kept
reserved till the disposal of the appeal so as to
accommodate the appellant in the event of his success.
In between, a few candidates (other than the
appellant) had laid a challenge to the process of selection
of Munsifs in the State of Jammu & Kashmir, as undertaken by
the J&K PSC, by filing a writ petition before the Supreme
Court. The writ petition was disposed of by a judgment
dated 6.2.1995. [See: Madanlal & Ors. Vs. State of Jammu
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& Kashmir AIR 1995 SC 1088]. Having decided the several
questions of controversy raised before this court, it was
directed that 11 persons shall be appointed out of select
list of 20 consistently with the posts advertised and
vacancies available out of which 11 posts, 2 shall be
reserved for schedule caste and schedule tribe candidates
and the remaining 9 shall be available to the general
category candidates as stated in the order of merit in the
list (Annexure-C) filed before the Supreme Court. The same
list as was filed before the Supreme Court as Annexure-C,
has been filed by the appellant before us as Annexure- 15
with the SLP. Therein the names of successful candidates in
the order of merit, after adding the marks obtained in viva
voce test with the marks obtained in written examination,
have been stated. But the list does not mention the name
and particulars of the candidate who figured in the order of
merit at serial No.3. According to appellant, he is the
candidate who had secured the 3rd rank and was placed at
serial No.3 in the order of merit but his name was not
communicated by the J&K PSC to the Law Department in view of
the controversy under litigation. This fact verified on the
oath of the appellant in the SLP has not been controverted
by the respondents and we have, therefore, no reason to
disbelieve the statement so made. In fact the learned
Advocate General appearing for the respondents has also not
disputed the correctness of this factual averment at the
time of hearing.
While the issue raised in the two writ petitions filed
by the appellant was sub-judice before the High Court, the
J&K PSC once again advertised fresh vacancies inviting
applications for selection and appointment to the post of
Munsif by holding a competitive examination in 1996. As the
LPA pending before the High Court was not taken up for
hearing in spite of various prayers made for early hearing,
the appellant again applied for participating in the 1996
selection. To satisfy the requirement of Rule 9, the
appellant approached the Registrar of High Court of Delhi
for issuance of certificate of practice. The certificate
now issued was also in the terms same as the earlier one.
This certificate issued by the Registrar was produced by the
appellant before the District & Sessions Judge, Delhi, who
issued a certificate to the appellant to the following
effect:-
FORM-II
OFFICE OF THE DISTRICT & SESSIONS JUDGE DELHI
Certified that Shri Sanjay Dhar son of Shri P.N. Dhar
resident of Flat L, Sagar Apartments, 6, Tilak Marg, New
Delhi who was enrolled as an advocate on January, 1990 (with
Bar Council of J&K) has been found to be possessing the
experience of actual practice at the bar for the last more
than 3 years at Delhi. years on the basis of the record and
the information furnished (vide letter No.9993/Genl/DHC
dated 25.5.96 of Shri Ramesh Sharma, Registrar (Vig.), High
Court of Delhi, at New Delhi.
Sd/ K.P. Verma District & Sessions Judge Delhi (with
rubber stamp) DATE : 28.6.96
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This certificate was accepted as valid by J&K PSC.
The appellant participated in the written test and the viva
voce test. He qualified at the both and pursuant to
recommendation made by J&K PSC, he was appointed a Munsif
vide posting order dated 5.12.1997 issued by High Court of
Jammu & Kashmir. This subsequent event was brought to the
notice of the High Court in the pending LPA making a prayer
to suitably modify the relief so that in the event of the
appellant being successful, he can be given the benefit of
notional seniority with a right to be considered for next
promotion in view of the primary relief of appointment
having been rendered infructuous in view of the subsequent
events. The application was allowed by the High Court and
the subsequent events with the supporting documents were
taken on record. On 15.4.1999, a Division Bench of the High
Court allowed the LPA filed by J&K PSC and set aside the
order of the learned Single Judge dated 21.9.1994. On the
view of the law taken by the Division Bench, CWP 675/93 and
CWP 415/95 filed by the appellant were directed to be
dismissed by a common judgment. The aggrieved appellant has
filed this appeal by special leave.
Ms. Indira Jaising, the learned senior counsel for
the appellant, submitted that the appellant having been
appointed a Munsif in the judicial service of J & K, the
principal grievance of the appellant stands redeemed; still
the issue raised by him survives for adjudication as the
appellant has been wrongfully denied appointment in the year
1995 pursuant to the 1992-1993 selections and if in spite of
his having been selected, the appointment was wrongfully
withheld then the relief sought for by him ought not to be
denied to him and if the appellant be found entitled to
appointment in the year 1995 then his seniority in the cadre
of Munsif should be calculated from the date with which
other incumbents figuring in the select list, in which the
appellant also figured, were appointed. We find merit in
this submission.
The main question arising for decision is: whether
the certificate of practice furnished by the appellant
satisfied the requirement of Rule 9 and, if so, whether the
appellant was wrongfully denied the appointment in 1992-93
selections?
Rule 9 came up for the consideration of this Court in
the case of Madanlal & Ors. (supra). Vide para 19, this
Court has held that a member of the Bar can be said to be in
actual practice for two years and more if he is enrolled as
an advocate by the conerned Bar Council since two years and
more and has attended law courts during that period. The
words actual practice as employed in Rule 9 indicate that
the concerned advocate must be whole-time available as a
professional attached to the concerned Court and must not be
pursuing any other full time avocation. The appellant
during the period 1990 to 1993 claims to have practised
exclusively in the High Court of Delhi. Obviously the best
person to verify the period of actual practice would be the
Registrar of the High Court and not the District Judge as
nothing would have been available in the records within the
command of the District Judge to verify the factum of actual
practice as the appellant was not practising in the District
Courts. The object of Rule 9 is to secure recruitment of
practising advocates in the judicial service. It does not
matter whether they were practising in the High Court or in
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the District Courts. A Registrar of the High Court is a
responsible officer who is basically a judicial officer of
the rank of District Judge or Addl. District Judge sent on
deputation to serve as a Registrar. The certificate issued
by him was counter-signed by the District Judge and this was
enough to satisfy the requirement of Rule 9. The District
Judge would not have counter-signed the certificate issued
by the Registrar unless the District Judge was satisfied of
the correctness of the verification as to period of practice
made by the Registrar. It is pertinent to note that in the
latter recruitment the certificate issued by the District
Judge and accepted by the J & K PSC as satisfying the
requirement of Rule 9 was also based on the record of and
the information furnished by the Registrar of the High Court
of Delhi. The certificate was not issued on the knowledge
of or material available in the records of District Judge,
Delhi. On the facts and in the circumstances of the case,
in our opinion, there is in substance no difference between
the certificate of the year 1993 and the later certificate
dated 28.6.1996. The J & K PSC was not justified in
rejecting the certificate dated 22.12.1992/17.3.1993 issued
by the Registrar and counter-signed by the District &
Sessions Judge, Delhi treating it as not satisfying the
requirement of Rule 9. We have already stated that it is
beyond the pale of any controversy that the appellant was
selected and in the select list prepared by the J & K PSC in
the year 1993, the name of the appellant figured at serial
no.3.
Vide order dated 28.4.2000 we had directed the learned
Advocate General appearing for the respondents to disclose
on affidavit the information as to what happened to the
vacancy which the High Court had directed to be kept
reserved subject to the result of the petition filed by the
appellant. The requisite information has been made
available in the affidavit dated 1.7.2000 filed by the
Assistant Legal Remembrancer of the State of J & K. From
the documents enclosed therewith we find that on 14.3.1995
the Government of Jammu & Kashmir (Law Department) appointed
only 10 candidates out of the select list of Munsifs. On
15.3.1995 the Registrar, High Court of J & K wrote a letter
to the Law Department stating that a mistake had crept in in
forwarding the list of candidates who were required to be
appointed on officiating basis as Munsifs; that the name of
one candidate figuring at serial no.9 in the select list was
omitted from the earlier letter and therefore a modified
order of appointment in respect of 11 candidates including
the one pointed out in the letter be issued forthwith.
Thereafter, a fresh appointment order was issued on
22.3.1995 modifying the earlier order of appointment and
thereby making 11 appointments.
On 25.8.2000 we directed the learned counsel for the
respondents to file an affidavit whether while making
appointments, pursuant to the selection list of the year
1992-93, the interim order of stay granted by the Division
Bench of the High Court was taken note of. An affidavit
dated 7.9.2000 sworn in by Shri G.Q. Wani, Registrar
Vigilance and Incharge Registrar General of Jammu & Kashmir
High Court has been filed which too does not clarify how
compliance with the order dated 9.2.95 of the Division Bench
was ensured while making appointments from the select list.
However, at one place it is stated in the affidavit that
over and above the appointments made there were still 3
vacancies available as on the date of the order passed by
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the Division Bench and therefore it was considered
unnecessary to keep 1 vacancy unfilled out of the 11 sought
to be filled up by making appointments. In either case
there is no hurdle in the way of the appellant being allowed
relief sought for by him on account of the 11 appointments
having been made by the State Government pursuant to the
letter of the High Court. Either there were 3 vacancies
available or if it was not so then the appointments have
been made in defiance of the interim order of stay of the
Division Bench which cannot be recognised to defeat any
rightful claim of the appellant.
Rule 9 of the J&K Civil Service (Judicial) Recruitment
Rules, 1967 must receive a purposive interpretation.
Purposive interpretation enables ascertaining the purpose of
enactment, the object sought to be achieved and the mischief
sought to be taken care of or prevented. The object of the
rule is to exclude lawyers not in actual practice, and hence
inexperienced, from entering judicial service. At the same
time the rule cannot be so construed as to create an
anomalous situation by asking District Judge to certify
period of practice of a lawyer practising in High Court and
not in District Courts, based on his personal knowledge or
official records of District Courts- as J & K PSC wanted
appellate to do. A literal compliance, if insisted on, may
defeat the object sought to be achieved by the rule itself.
If an advocate is practicing exclusively in the High Court,
the District Judge would not have any material available in
his records to verify the factum and period of actual
practice of any applicant. The Registrar of the High Court
would be the best suited person to issue a certificate in
that regard and since the rule contemplates the requisite
certificate being issued by the District Judge, the
underlying object sought to be achieved by the rule would be
fulfilled if the certificate issued by the Registrar is
counter-signed by the District Judge or the District Judge
issues a certificate of his own based on the certificate
issued by the Registrar. In this view of the matter the
certificate dated 12.12.1992/17.3.1993 filed by the
appellant before the J&K PSC satisfied the requirement of
Rule 9 above-said and the J&K PSC was not justified in
rejecting the application of the appellant holding him to be
ineligible. As the appellant participated in the process of
selection protected by the interim orders of the High Court
and was also successful having secured third position in the
select list, he could not have been denied appointment. The
appellant is, therefore, fully entitled to the relief of his
appointment being calculated w.e.f. the same date with
which the candidates finding their place in the order of
appointments issued pursuant to the select list prepared by
the J&K PSC for 1992-93 were appointed and deserves to be
assigned notionally a place in seniority consistently with
the order of merit assigned by the J&K PSC.
We have already noticed the learned Single Judge
having directed the appellant to be appointed on the post of
Munsif in the event of his name finding place in the select
list subject to the outcome of the writ petition which order
was modified by the Division Bench in LPA staying the order
of the learned Single but at the same time directing one
vacancy to be kept reserved. The High Court and the
Government of J & k (Law Department) were not justified in
by- passing the judicial order of the High Court and making
appointments exhausting all available vacancies. The right
of the appellant, if otherwise sustainable, cannot be
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allowed to be lost merely because of an appointment having
been made wittingly or unwittingly in defiance of the
judicial order of the High Court.
For the foregoing reasons the appeal is allowed. The
judgment under appeal is set aside. It is directed that the
appellant shall be deemed to have been appointed along with
other appointees under the appointment order dated 6.3.1995
and assigned a place of seniority consistently with his
placement in the order of merit in the select list prepared
by J&K PSC and later forwarded to the Law Department.
During the course of hearing the learned senior counsel for
the appellant made a statement at the Bar that the appellant
was interested only in having his seniority reckoned
notionally in terms of this order and was not claiming any
monetary benefit by way of emoluments for the period for
which he would have served in case he would have been
appointed by order dated 6.3.1995. We record that statement
and direct that the appellant shall be entitled only to the
benefit of notional seniority (and not monetary benefits)
being given to him by implementing this order. The appeal
is disposed of accordingly. The contesting respondents
shall pay the appellant costs quantified at Rs.5,000/-.