a writ of Mandamus to direct the respondents to arrange "public hearings" on the Civil Liability for Nuclear Damage Bill, 2010 at all the State Headquarters in the country

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:22.07.2010

CORAM

THE HONOURABLE MR. M.Y.EQBAL THE CHIEF JUSTICE
AND
THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM

WRIT PETITION No.14866/2010



M.Vetri Selvan                 ... Petitioner

Vs.

1.Union of India
   Rep. by its Secretary,
   Ministry of Science and Technology,
   Technology Bhavan, New Mehrauli Road,
   New Delhi  110 016.

2.The Chairman,
   Parliamentary Standing Committee on
   Science and Technology,
   Technology Bhavan, New Mehrauli Road,
   New Delhi  110 016.   ... Respondents

PRAYER :  This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Mandamus to direct the respondents to arrange "public hearings" on the Civil Liability for Nuclear Damage Bill, 2010 at all the State Headquarters in the country and at all the places where the nuclear installations are in existence in the country before the introduction of the Bill in the parliament.

      For Petitioner       :Mr. M.Radhakrishnan

   
ORDER

The Honourable The Chief Justice
      This writ petition has been filed as a public interest litigation by an Advocate, praying for issuance of a writ of mandamus to direct the respondents to arrange "public hearings" on the Civil Liabilities for Nuclear Damage Bill, 2010 at all State Head Quarters in the country and at all the places where the nuclear installations are in existence in the country before the introduction of the Bill in the parliament.

2. It is submitted by the petitioner that the second respondent  published a advertisement in the English Daily "The Hindu" dated 24.06.2010, inviting written comments/suggestions either in English or in Hindi on the Civil Liabilities for Nuclear Damage Bill 2010 (for short, the bill). In the terms of the notification those, who are willing to appear before the committee for oral evidence, besides submitting the memoranda may indicate so, In the response to the notification the petitioner is stated to have submitted his memoranda through e-mail on 06.07.2010.  The grievance expressed in the writ petition is that the notification does not make any provision for public hearings as available in matters relating to environmental clearance and therefore, in public interest the writ petition has been filed.
3. According to the petitioner, "nuclear damages" as defined in clause 2 (f) of the Bill itself is incapable of defining the terms used in the Bill and since the ultimate sufferers are public, public hearings are essential. Failure to make provision for public hearings before the introduction of Bill of this nature is violative of Article 14 and 21 of the Constitution of India.  In terms of clause 5 of the bill an "operator" shall not be liable for any nuclear damage, where such damage is caused by a nuclear incident directly, due to natural disaster or act of armed conflict, civil war etc. When the Government is the "operator", the liability of the Government to compensate those affected by nuclear disaster is two fold. As the "operator" of the nuclear installation, the Government is liable. Since the liability of the Government as "operator" is limited the liability of the Government as the Central Government is added to its liability, which is always discharged by means of public funds. Therefore, in terms of clause 5, the operation of the nuclear operation will not be liable, if the nuclear incident is directly due to terrorism and this exclusion would mean absence of effective remedy for the affected public and therefore public hearing before introduction of the Bill is essential.  It is further submitted that fixation of time limit for claiming compensation for any nuclear damage is arbitrary and unreasonable. That, the bill does not provide for an appeal against the award passed by the Nuclear Damage Claims Commission and the Chairperson and members of the Commission are appointed by the Central Government, and the Government has complete control over the Commission and it is not an independent body. Further, it is submitted that the Union of India considered public hearings in matter touching environment and the Union held public hearings for introduction of genetically modified brinjal.  Environment Clearance Regulation, 2006 provide for public hearing on commencement of nuclear power project and proposing of nuclear fuel.  The term nuclear damage speaks about impaired environment caused by a nuclear incident, environment and nuclear incident are inter-related and therefore, public hearing prior to introduction of the Bill is essential.

4. Mr.M.Radhakrishnan, learned counsel appearing for the petitioner made elaborate submissions about the Bill pointing out that in case of a nuclear incident, the public are the sufferers and therefore, it is essential that a public hearing is conducted.  It is further submitted by the learned counsel that seldom there is discussion in the Parliament about the Bill and from the press reports, it is understood that during 2008, the Parliament passed 16 of the 36 Bills in less than 20 minutes and most of them got the approval of the Members of Parliament without any debate.  The learned counsel relied on press reports on nuclear accidents in India and would submit that prior to introduction of the Bill, unless public hearing is granted, it would not bring about a proper debate on the various factors. The learned counsel placed reliance on the notification of the Government of India dated 14.09.2006, issued under the Environmental Protection Act, that prior environmental clearance is required for various projects/activity as mentioned in the schedule of the notification and the nuclear power project is also one such project covered under the notification and in terms of clause 7 (III). Stage 3 public consultation is contemplated and it refers to the process by which the concerns of local affected people and others, who have plausible stake in the environmental impacts of the project are ascertained with a view to taking into account all the material concerns in the project design as appropriate.   Further, such public hearing should be held at the site or in close proximity.  Therefore, it is contended that public hearing is essential in the instant case.  The learned counsel placed reliance on the decision of the Hon'ble Supreme court in S.P.Gupta and Others Vs. President of India and others , AIR 1982 SC 149, regarding the aspect of loco-standi and the petitioner is entitled to approach this Court to enforce the Socio Economic Rights and to compel performance of public duty which the State is bound to perform.

5. We have heard the learned counsel for the petitioner in extenso and perused the materials available on record.

6. In the Statement of Objects and Reasons of the Bill, it has been mentioned that the nuclear industry in India is growing and as a result of the steps taken particularly in the recent period, it is expected to form an important part of energy-mix of the country. While making the design and during construction and operation of nuclear power plants every care is taken to ensure safety of the plant, public and the environment.  However, in the unlikely event of a nuclear incident or accident, there may be damage to individuals property and environment on a large scale. The geographical scope of the damage may not be confined to national boundaries and it may have trans-boundary effects. In such an event, it is desirable that protection is accorded to victims of such incident or accident by a third party liability regime.  It is important to make provision to ensure clarity of liability and the requirement to pay compensation.    At the international level there are four instruments for nuclear liability, i.e., the 1960 Paris Convention, 1963 Vienna Convention, 1997 Protocol to Amend Vierina Convention and 1997 Convention on Supplementary Compensation for nuclear damage.  Convention on Supplementary Compensation was developed under the auspices of International Atomic Energy Agency and which deal with nuclear liability.  It provides for treaty relations among all countries that accept the basic principles of nuclear liability law and an international fund to compensate nuclear damage in the event of nuclear incident.  The said Convention on Supplementary Compensation envisages a two tier system with respect to the amount of compensation, e.g., Installation State to ensure availability of the amount of compensation (at least 300 million Special Drawing Rights), and International Fund for which all contracting parties are obliged to contribute the amount based on a formula for calculation of contribution.  India is not a party to any of the nuclear liability conventions mentioned above.  Indian nuclear industry has been developed within the context of a domestic framework established by the Atomic Energy Act 1962.  There is no provision in the said Act about the nuclear liability or compensation for nuclear damage due to nuclear accident or incident and no other law deals with nuclear liability for nuclear damage in the event of nuclear incident.

7. In the above stated background, the Government considered necessary to enact a legislation, which provides for nuclear liability that might arise due to a nuclear incident and also on the necessity of joining and appropriate international liability regime.  The Bill contains 7 chapters, chapter I- the preliminary, chapter II-liability for nuclear damage, chapter III- Claims Commissioner, chapter IV claims and awards, Chapter V -Nuclear Damage Claims Commission, Chapter VI offences and penalties and chapter VII - miscellaneous. The Bill, which was introduced and pending in Lok Sabha had been referred to the Parliamentary Standing Committee on Science and Technology, Environment and Forest headed by a Member of Parliament (Rajya Sabha) for examination and report. Based on such reference, a publication/advertisement was issued in the dailies on 24.06.2010, stating that in order to have wider consultations, the Standing Committee has decided to invite memoranda containing suggestions/views/comments of experts/institutions/organizations interested in the subject matter of the Bill. Those desirous of submitting memoranda to the Standing Committee could send their written comments/suggestions to the named officer of the Rajya Sabha Secretariat within 15 days from the date of the publication. Those, who are willing to appear before the committee, besides submitting the memoranda were directed to indicate their preference, however, the committee's decision in this regard shall be final. It is further stated that the memoranda submitted to the Committee would form part of the records of the committee and would be treated as confidential and would enjoy privileges of the committee. The bill had been published in Gazette of India dated 07.05.2010 and copies could be obtained on written request or can be downloaded from the official website of the Rajya Sabha. According to the petitioner, he has submitted his memoranda by e-mail on 06.07.2010. Copy of such memoranda has been filed in page 30 of the typed set of papers and the contents of the memoranda are the matters mentioned in the affidavit filed in support of the writ petition, most of which has been referred to in the preceding paragraphs.  It is to be noted that the petitioner has not expressed his willingness to appear before the committee for giving oral evidence.

8.  The sheet anchor of the arguments of the learned counsel is that before the Bill is placed before the Parliament, the respondents have to conduct public hearings in various places, regarding the effect of the Bill and to point out the deficiencies and lacunae.  Heavy reliance has been placed on the notification issued under the Environment and Protection Act, stipulating pre-environmental clearance in respect of projects like nuclear projects and in the process of obtaining pre-environmental clearance, public hearing is contemplated and as a nuclear incident or accident would have direct impact on the environment, therefore public hearing has to be conducted.

9. A public hearing is a type of public meeting, and much literature refers to it as such, however there are some distinctive aspects that make a hearing different.  Abigail Williamson and Archon Fung define a public hearing as "an open gathering of officials and citizens, in which citizens are permitted to offer comments, but officials are not obliged to act on them or, typically, even to respond publicly." The main purpose of a public hearing is to allow citizens the chance to voice opinions and concerns over a decision facing a legislature, agency, or organization. Public hearing does not always mean public participation in a meeting held for any purposes.  The main purpose of public hearing is to allow citizens the chance to voice opinions and suggestions inter alia on a proposed legislation.  This can be done by issuing notifications through news papers and inviting suggestions and opinions from the citizens.  If this is done, it will amount to sufficient compliance of the term "public hearing"
10.  It is to be borne in mind that the present issue pertains to a legislation proposed to be introduced in order to achieve certain objects and reasons as set forth above. The basic function of the Parliament is to make laws, amend them or repeal them.  All legislative proposals are brought before the Parliament in the form of Bills, which is a statute in the draft form and cannot become law, unless it has received the approval of both the houses of Parliament and the assent of the President of India. Under Article 118 of the Constitution, each house of Parliament may make Rules for regulating its procedure and the conduct of its business.  In terms of Article 122 of the Constitution, the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure and no officer or member of Parliament in whom powers are vested under the Constitution for regulating procedure or the conduct of business or for maintaining order in Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers, Article 212 of the Constitution is the corresponding Article in respect of State legislature. Based on such power the rules of procedure and conduct of business in Lok Sabha has been made.  The Hon'ble Supreme Court in M.S.M. Sharma Vs. Shree. Krishna Sinha, AIR 1960 SC 1186 has held that the validity of the proceeding inside the legislature of a State cannot be called in question on the allegation that the procedure laid down by law had not been strictly followed.  As per the Rules of Procedure, there are various steps in the process of enacting a new law,  which could be broadly classified it four stages, stage-1 where the need for a new law or an amendment to an existing law is identified, Stage-2 when the concerned Ministry's drafts proposed laws which is termed as the Bill, Stage-3 when the cabinet approves the Bill and is introduced in the Parliament and every such Bill goes through three readings in both houses before it becomes an Act. If the Bill is passed in one house then it is forwarded to other house, where it goes through the second and third readings.  During the second reading the Government or any member of Parliament  may introduce amendment to the bill, which may be based on recommendations of the Standing Committee.  Thereafter, in stage-4 after both the houses of Parliament have passed the bill, it is presented to the President for asset. Perusal of the notification issued by the Rajya Sabha Secretariat, it is seen that the Bill was introduced and was pending in the Lok Sabha, which was referred to the Parliamentary Standing Committee. Thus, it appears that the Bill is in stage-1 (as referred above). At this stage the comments/suggestions/views have been invited from the public and by which the public are given an opportunity to participate in the process of law making.  In our view, this notification enables persons interested to get themselves involved in the process of law making.

11. In our opinion a  public hearing is required only when a specific statute requires one to be conducted, but it is always open to the Government to hold public hearings in other instances.  In the process of law making, which are governed by a separate set of rule, the theory of public hearing as stipulated under the Environment Protection Laws cannot be incorporated into the rules of procedure of Lok Sabha, which are already codified.  This Court has no jurisdiction to legislate or amend or vary the Rules of Procedure. The test which is normally required to be fulfilled in administrative or executive action is that the action should be free from arbitrariness and without discrimination thereby, it does not violate Article 14 or 21 of the Constitution of India. Though, the tests evolved to examine executive or administrative action cannot be made applicable to legislative process, it remains to be seen in the instance case, the Standing Committee  of the Rajya Sabha, based on a reference, has issued a public notice calling for objections. The notification further permits such persons submitting their memoranda could indicate that they should be given an opportunity of hearing to place material before the Standing Committee.  Therefore, the opportunity provided for persons interested for submitting their objections, satisfies the test of fairness.  The petitioner cannot import the theory of public hearing stipulated under a statute such as Environment laws in the matter of law making. It is not as if that the Bill which has now been drafted and on which objections/views have been called for, is to be declared a law on the expiry of the time limit in the notification. As seen above, there are various stages before which the Bill become an Act and therefore, in our view the opportunity afforded in the notification to submit memoranda containing objections/views with a right to seek for oral enquiry is an effective opportunity to enable the persons, who are desire of availing such opportunity to submit their views. There is nothing unreasonable or arbitrary in the procedure adopted by the Standing Committee with regulated as per the Rule framed under Article 118 of the Constitution. As already noted, the petitioner herein has not sought for an opportunity to appear before the committee in person.  One other ground, which has been raised in the writ petition is that there is no appellate forum provided against the award of the Claims Commission. The Hon'ble Supreme Court in M/s.Babubhai & Co and others Vs. State of Gujarat and others AIR 1985 SC 613 has held that mere absence of a corrective machinery by way of appeal or revision by itself would not make the power under the statute unreasonable or arbitrary, much less would render the provision invalid.

12.  For the above reasons, we do not find any sufficient grounds to grant the prayer sought for in the writ petition as it would amount to enacting a separate set of rules of procedure, which this Court is not entitled to do.  In the result, the writ petition fails and it is dismissed.  However, there shall be no order as to costs.            











pbn

To

1.Union of India
   Rep. by its Secretary,
   Ministry of Science and Technology,
   Technology Bhavan, New Mehrauli Road,
   New Delhi  110 016.

2.The Chairman,
   Parliamentary Standing Committee on
   Science and Technology,
   Technology Bhavan, New Mehrauli Road,
   New Delhi 110 016

review application has been filed by the petitioner seeking review of the judgment and order dated 20th October, 2009 passed in W.P.No. 10911 of 2009 whereby this Court dismissed the writ petition filed by the petitioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 10.08.2010

Coram:

The Honourable Mr.M.Y.EQBAL, CHIEF JUSTICE
and
The Honourable Mr.Justice T.S.SIVAGNANAM

Review Application No.53 of 2010
in
W.P.No. 10911 of 2009
----------
P.Someshkandar ... Petitioner

vs.

1. The District Collector,
    O/o The District Collector,
    Coimbatore.

2. The Assistant Director,
    Town Panchayat,
    Coimbatore District.

3. The Executive Officer,
    Chinnavedampatti Town Panchayat,
    Chinnavedampatti, Coimbatore.

4. Vijayan  Respondents


Review Application filed under Order 47 Rule 1 of the Code of Civil Procedure against the common order made on 20.10.2009 in W.P.No.10911 of 2009 on the file of this Court.




For Petitioner ::::  Mr.K.M.Vijayan, Senior Counsel
     for M/s.Fast Track Law Associates

For Respondents
     1 to 3 ::::  Mr.J.Raja Kalifulla,
     Government Pleader

O R D E R

THE HONBLE CHIEF JUSTICE

This review application has been filed by the petitioner seeking review of the judgment and order dated 20th October, 2009 passed in W.P.No. 10911 of 2009 whereby this Court dismissed the writ petition filed by the petitioner.

2. It appears that the petitioner filed the above mentioned writ petition being W.P.No.10911 of 2009 for a direction on the first and second respondents to decide the complaint/petition and thereby to remove the pig farm run by the fourth respondent namely, Vijayan.  The said fourth respondent also filed a separate writ petition being W.P.No.13757 of 2009 for issuance of a writ of certiorari for quashing the order dated 17th July, 2009 passed by the first respondent for removal of the pig farm run by him.  Both the writ petitions were disposed of by this Court in terms of the judgment and order dated 20th October, 2009.
3. The present petitioner alleged in the writ petition that the pig farm run by the fourth respondent is causing health hazard to the general public. The Executive Officer of the first respondent-Chinnavedampatti Town Panchayat, Coimbatote issued notice dated 17th July, 2009 directing the fourth respondent to remove the pig farm. Further, it was contended that the fourth respondent cannot run the pig farm without the licence obtained from the town panchayat. A Division Bench of this Court, after hearing the learned counsel appearing for the parties, came to the conclusion that the piggery unit run by the fourth respondent is not slaughtering any pig and that the waste of the pigs are disposed of in a hygienic manner and the pig farm is maintained without causing any health hazard to the general public. This Court also considered the different provisions of the Act and the Rules, and finally set aside the impugned notice dated 17th July, 2009 issued by the Executive Officer asking the fourth respondent to remove the pig farm.

4. The petitioner sought review of the judgment on the ground inter alia that neither the petitioner nor respondents 1 to 3 made clear submissions of the legal positions regarding the applicability of law of mandatory possession of licence for running the pig farm. In the interest of justice, therefore, the petitioner may be given an opportunity to clarify the legal position. The petitioner referred to some of the provisions of the Tamil Nadu District Munipalities Act, 1920 and submitted that the fourth respondent ought to have obtained licence under the said Act. It is, further, contended that by the complaint filed by the petitioner a request was made to the authorities to take necessary action in accordance with law for removal of the pig farm. Hence, the petitioner has every right to bring in to light the requirement of licence by the fourth respondent. It is submitted that there is apparent error on the face of the record and the judgment is liable to be reviewed. The petitioner, further, stated that this Court has committed error of law while taking a view that notice was mandatory under the Tamil Nadu Public Health Act from the Health Department to the officers of the respondent. Various other grounds have also been raised assailing the reasoning given by the Court in the impugned judgment.
5. We have heard the learned counsel for the parties.
6. It is well settled principles of law that the power of review can be exercised for correction of mistake and not to substitute a view. A review cannot be treated as an appeal in disguise. The error contemplated under the Rules must be such which is apparent on the face of the record. An error would not require any long drawn process of reasoning on points where there may conceivably be two opinions. It is equally well settled that a wrong decision can be subjected to appeal to higher forum, but a review is not permissible on the ground that the Court proceeded on a wrong proposition of law.
7. In the case of Meera Bhanja v. Nirmala Kumari Choudhury reported in 1995 (1) SCC 170, while discussing the scope of ambit of review as contemplated under Order 47 Rule 1 CPC, their Lordships observed: -
8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma1, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3)
 It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.
8. Recently, in the case of Haridas Das v. Usha Rani Bank reported in 2006 (4) SCC 78, the Apex Court held: -

13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it may make such order thereon as it thinks fit. The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing on account of some mistake or error apparent on the face of the records or for any other sufficient reason. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. held as follows: (SCR p.186)
[T]here is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.  where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.
9. On a plain reading of the provisions of Order 47 Rule 1 of the Code of Civil Procedure, and in the light of the principles laid down by the Supreme Court, we are of the definite opinion that the impugned judgment cannot be reviewed on the grounds stated by the petitioner in the review petition.

10. Hence, we do not find any reason to review the order passed by the Division Bench of this Court. This review application is dismissed. No costs.













pv/-

Copy to:

1. The District Collector,
    O/o The District Collector,
    Coimbatore.

2. The Assistant Director,
    Town Panchayat,
    Coimbatore District.

3. The Executive Officer,
    Chinnavedampatti Town Panchayat,
    Chinnavedampatti,
    Coimbatore

mandamus or any other writ or order in the nature of a writ forbearing the respondents herein, their agents or servants from constructing an underground Car Park in the Corporation Playground situated on

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10..08..2010

CORAM

THE HONBLE Mr.M.Y.EQBAL, CHIEF JUSTICE
and
THE HONBLE Mr.JUSTICE T.S.SIVAGNANAM

W.P.No.4647 of 2010
and
M.P.Nos.1 and 2 of 2010
------------

R.Chandran,
No.15, Ramasamy Street,
T.Nagar,
Chennai  17. ..Petitioner.

Vs.

1. State of Tamil Nadu,
    rep. by its Secretary,
    Department of Municipal Administration & Water Supply,
    Fort St.George, Chennai  600 009.
2. The Commissioner,
    Corporation of Chennai,
    Ripon Buildings,
    Chennai  600 003. ..Respondents.


PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus forebearing the respondents herein, their agents or servants from constructing an underground Car Park in the Corporation Playground situated on Venkatanarayana Road, T.Nagar, Chennai  17 or for converting it for any other purpose and pass such further or other orders.
------------

For Petitioner :: Mr.N.G.R.Prasad
  for Ms.C.A.Sharmila Victor  
For Respondent  1 :: Mr.J.Raja Kalifulla, Govt. Pleader
For Respondent  2 :: Mr.P.Wilson, Addl. Advocate General
  for Mr.Mohammed Gouse
For petitioner in M.P.2/10 :: Mr.T.Mohan
   (Impleading Petition)   Mr.P.N.Radhakrishnan
-------------

O R D E R
The Honble The Chief Justice

In this writ petition, by way of public interest litigation, the petitioner seeks a ccc Venkata Narayana Road, in the City of Chennai or for converting it for any other purpose.

2. According to the petitioner, a news item was published in the newspapers that the Corporation Play ground is being converted into an underground Car Park to facilitate parking of cars. Though Venkata Narayana Road is a busy thoroughfare, there has never been any traffic congestion in view of the restricted number of commercial buildings in the area. According to the petitioner, the respondents are contemplating to sacrifice the play ground, which has been in existence for the last 50 years. It is stated that taking advantage of its classification of Open Space and Recreational Area, they have now decided to locate the car park in the Corporation play ground. The petitioners case is that the play ground has a concrete flood lit basketball court with a gallery. Along side the gallery there is a changing room with toilet facilities. The other part of the play ground has an outdoor gymnasium and a provision has been made for the local residents to play volley ball, shuttle and badminton. There are about 10 clubs managed by enthusiasts like the petitioner to provide free coaching to young children and students belonging to different schools and colleges. The basket ball court in the playground has been the venue of State Level Basketball Tournaments by Public Sector Undertakings and Educational Institutions for the last 50 years. The Clubs have produced State Level players at varying age groups and belonging to middle and lower income families. It is contended by the petitioner with the depletion of open spaces in the City, due to construction of multi storeyed buildings, most of them in an around T.Nagar, the conversion of the playground into a Car Park would result in grave injustice to the residents of the locality. The petitioners case is that earlier, the Corporation decided to have an underground car park in Natesa Mudaliar Park, but the same was dropped and ultimately it was decided to convert the present park into an underground car parking and for that there had never been any consultation with the people, who have been residing there. In that view of the matter, the underground car parking shall be constructed only in open space and by no stretch of imagination, the corporation play ground be converted into underground car parking by treating the park and the play ground as a open space. It is, further, stated that the proposed action of the respondents smacks of arbitrariness, fairness and favoritism and it cannot be in public interest. The petitioner, therefore, challenges the proposed action of the respondents, inter alia, on the following grounds:-
a) The unilateral decision of the respondents to convert a play ground into a car park is arbitrary, illegal and violative of Articles 14 & 21 of the Constitution of India.
b)  The respondents have failed to consider that this action is contrary to the provisions of the Town and Country Planning Act, 1971.
c) The petitioner and the residents of the locality have a legitimate expectation to enjoy the facilities provided in the play ground.
d) The respondents are estopped from changing the user of the play ground since it forms an integral part of the residential lay out and it was on the belief that the play ground would exist that residents have purchased plots and constructed residential houses.
e) The respondents have no right to take a unilateral decision on the change of user without affording an opportunity to the petitioner and the other residents of the locality.
f) The decision of the respondents to convert the playground into a car park has been taken to serve the vested interests of a few powerful personalities doing business in the area.
g) The respondents have not made a practical/scientific evaluation of the parking requirement in the area and have decided to construct an underground car park at a substantial price only to enable a few businessmen in the area to augment their business.
h) In fact, the car park will serve as an amenity for the business houses in the area and will in no way further the interests of the residents of the locality.
i) the decision to construct an underground car park transgresses on the rights of the petitioner and other residents thereby violating Articles 14 and 19 of the Constitution of India.
j) The respondents have failed to see that their proposal has been formulated without affording the residents an opportunity of being heard on the matter, which is not only a statutory right considering the fact that the playground is a notified one but also a constitutional right.
k) The provisions contained in Sections 5,6,7 & 8 of the Tamil Nadu Parks, Playfields and Open Space Act, 1959 have not been complied with.

3. In the counter affidavit filed by the 2nd respondent namely., the Corporation of Chennai it is stated that there has been tremendous growth in number of vehicles in the Chennai City in the last twelve years. The total number of motor vehicles in the Chennai City has increased manifold. Thiagaraya Nagar also known as T.Nagar is the busiest and largest commercial centre in the Chennai City. Numerous Jewellery, Textile Shops, Mega Departmental Stores, etc., is located in this area which attracts shoppers not only from other parts of Chennai but also from the other parts of Tamil Nadu and other parts of the country. The attractiveness of T.Nagar as the ultimate shopping destination has brought with it problems of congestion, pollution, parking and traffic problems. Due to the insufficient vehicular parks space in T.Nagar, the visitors park their two wheelers and four wheelers on the road side thereby causing traffic congestion in the entire area. Hence, the Corporation of Chennai proposed to examine the feasibility of providing under ground multi level car parking in the play ground at Venkata Narayana Road, T.Nagar belonging to the Corporation of Chennai. Since, only under ground parking system needs to be considered without disturbing the present use i.e. playground, the Corporation of Chennai has appointed a consultant for carrying out traffic survey as well as feasibility study for the proposed underground parking lot at the play ground at Venkata Narayana Road, T.Nagar without affecting/disturbing the present use of the land i.e., playground. It is further stated that the Corporation is contemplating to construct a underground Multilevel Car Parking system in the basement floors only, and therefore, the existing playground activity in the ground level will not get affected due to this project. The 2nd respondents case is that the land comprised in Town Survey No.5900 of Mambalam Village is a corporation private land situated at Venkata Narayana Road, T.Nagar, Chennai, and the Corporation of Chennai had, in the interest of public, developed the said land as a playground, and since the proposed car parking facility will be in the basement floors only, it will not affect the playing activities on the ground level in any manner. The land under Survey No.5900 of Mambalam Village is a Corporation private land and the Corporation of Chennai had developed it as a playground in the interest of public. A similar land opposite to the playground has been developed as a public park by the Corporation of Chennai and well utilized by the public. In the same vision the Corporation of Chennai is proposed to construct an underground Car Parking facility below the ground level without affecting the present status i.e., playground. It is stated that the Corporation of Chennai is developing and maintaining parks and playgrounds at various location in the Chennai City in the interest of public and the same are wholeheartedly welcomed by the public. The peak hour demand of parking requirement in and around 500 meters of the play ground area, as per the traffic survey conducted by the consultant, is 279 Cars and 1185 Two Wheelers.


4. From the extract of Permanent Land Register filed by the respondent the land has been shown as Government - Park Site. The land in question has also been shown as play ground under Rule 4(c) (3) of the Development Control Rules. In the Traffic Survey Report the following facts have been highlighted:-
T.Nagar (Thiagaraya Nagar) is the busiest and largest commercial centres in Chennai. Major commercial streets in T.Nagar are Pondy Bazaar, North Usman Road, South Usman Road, Ranganathan Street and G.N.Chetty Street. The silk saree shops like Pothys, Nalli, Sri Kumaran and jewellery shops likes Lalitha Jewellers, GRT, etc. and mega departmental stores like Saravana Stores and Ratna Stores in T.Nagar attracts shoppers not only from other parts of Chennai but also from other cities in Tamil Nadu and also from other parts of the country. The attractiveness of T.Nagar as the ultimate shopping destination has brought with it problems of congestion, pollution, parking and traffic problems. Hence, there is a need to address the problem areas in a holistic way and in the right earnest Corporation of Chennai proposes to examine the feasibility of providing under ground Multi Level Car Parking on DBOT Basis (Design, Build, Operate & Transfer) in a playground belonging to the Corporation at Venkata Narayana Road in Division 126, Zone-VIII.

5. In reply to the application filed under the Right to Information Act the Public Information Officer gave the following information:-



From To
   The Public Information Officer, Thiru.N.SAnkar,
   Corporation of Chennai, Advocate,
   Zone VIII, 309, Linghi Chetty Street,
   No.117 N.S.K.Salai, First Floor,
   Kodambakkam, Chennai  600 001.
   Chennai  600 024.

Z.O.VIII C.No.8840/2010 Date: 7.1.2010

Sub: Zone VIII  Unit 22  Division 127  Petition received under
       Right to Information Act, 2005  Reply furnished  reg.
Ref: Letter from Thiru. N.Shankar, dated 26.11.2009
-------------

In this regard, it is submitted the particulars from point 1 and 2 as given below:
Sl.No.
Petition Details
Reply
1.
The Survey Number of the Corporation Playground on Venkatanarayana Road, T.Nagar, Chennai - 600 017.
Survey Number of the Corporation Playground is 5900 of T.Nagar.
2.
The designated purpose of user shown in the Master Plan/Layout
Playground purpose


6. Now the question that falls for consideration is as to whether a Corporation land which is shown and used as Park and play ground for the last several decades can be converted into an underground car parking. Earlier several writ petitions were filed as public interest litigations by different petitioners including Consumer Action Group challenging the constitutional validity of the amended provision of Section 113-A of the Tamil Nadu Town & Country Planning Act, 1971 empowering the government to exempt any land or building developed immediately before the date of commencement of the Amending Act from all or any of the provisions of the Act or Rules or Regulations made thereunder by collecting regularization fee. Another  Public Interest Litigation was also filed highlighting the violations of the Rules in construction of shopping complexes at T.Nagar and at N.S.C.Bose Road in multi-storied buildings.  A direction was sought for to the authorities to enforce the provisions of Tamil Nadu Multi-storied Buildings Act, 1973 and the Rules made thereunder to ensure public safety and effective free flow of traffic. The grievance of the petitioner was that in spite of the order of the Court, no administrative schemes to enforce Town Planning law and to demolish deviations have been formulated till date. On the contrary, the Governor of Tamil Nadu promulgated Tamil Nadu Ordinance No.7 of 2000 (Tamil Nadu Act 31 of 2000) to amend Section 113-A of the Tamil Nadu Town and Country Planning Act for regularization of all those illegal constructions. The said writ petitions were disposed of by a Division Bench of this Court by appointing a Monitoring Committee with sufficient staff and infrastructure to oversee the demolition of unauthorized constructions put up in violation of the planning permit. Paragraph  31 of the judgement reads as under:
31. We are inclined to appoint a Monitoring Committee with sufficient staff and infrastructure to oversee the demolition of unauthorized construction put up in violation of the planning permit, master plan, CRZ and other laws. It is also necessary to identity professional builders of such buildings so as to enable the flat purchasers to proceed against the builders for recovery of damages. It is also high time that the CMDA and the Corporation should identity the officers responsible for the failure to enforce the FSI laws and to initiate disciplinary action against them. It is also necessary to direct that the regularization fee collected should be kept aside in a separate fund and not merged with the general account of the State of Tamil Nadu and its agencies. These funds should be used for the purpose of alleviating the sufferings caused to the public by the violations committed by the builders. Further certain violations like failure to provide adequate car parking area, fire safety measures within the building premises , should be viewed seriously as it has a larger societal impact and these violations cannot be ordinarily condoned by collecting the fees, especially in regard to the commercial buildings. Owners of such premises must be directed to demolish the unauthorized construction and provide parking area and fire safety measures within the premises. Similarly, violations in FSI potentially impact the larger community and must not be condoned particularly in commercial complexes. Violation in FSI result in a massive strain on the existing infrastructure facilities like road network, drainage, water, etc. and also impact the neighbourhood. Similarly, the violations in Open Space Reservation (OSR) or illegal buildings put up on lake-beds, water catchments, flood plains, CRZ areas, etc. have ecological repercussions and must not be condoned and violations in such cases must be demolished.  
The Division Bench inter alia issued the following directions:
(i) .
(ii) .
(iii) .
(iv) .
(v) Special buildings should be categorized as those with actual construction of ground plus three floors. In the case of commercial special buildings, the same measures that apply to multi-storied buildings as above should be followed. In the case of residential multistoried buildings and special buildings, the monitoring committee may suggest less stringent measures, bearing in mind the impact of retaining the building.
(vi) The professional builders of illegal multi-storied and special buildings should be identified for imposition of heavy penalties. This amount should be used to compensate the unwary purchasers and to take remedial measures for alleviating the harm caused to the society.
(vii) The Committee shall identify the officers at the CMDA and the Corporation, who are responsible for the failure to enforce the planning laws and make appropriate recommendation for prosecution and/or disciplinary action.
.


7. It, is therefore, evidently clear that all illegal and irregular construction of buildings, shops and multi-storied complexes in T.Nagar, without providing adequate space by the builders or by the owners for car parking, resulted in traffic congestion, thereby using the road as car parking. In order to overcome these traffic congestions, the respondent-corporation has decided to use the land meant for park and play ground as underground car parking.  

8. In the case of M.I.Builders Pvt. Ltd. Vs. Radhey Shyam Sahu reported in AIR 1999 SC 2468 a similar question came up for consideration before the Supreme Court. In that case, the Lucknow Nagar Mahapalika also called Nagar Nigam or Corporation permitted a builder known as M.I.Builders Pvt. Ltd. to construct underground shopping complex in the Jhandewala Park situated at Aminabad Market, Lucknow. The High Court of Lucknow quashed the resolution of the Corporation permitting such construction and also the agreement entered into between the Corporation and the builder. The matter ultimately came to the Supreme Court in appeal filed by the builder. The Supreme Court dismissing the appeal held as under:-
Para-59:  Jhandewala Park, the park in question, has been in existence for a great number of years. It is situated in the heart of Aminabad, a bustling commercial-cum-residential locality in the city of lucknow. The park is of historical importance. Because of the construction of underground shopping complex and parking it may still have the appearance of a park with grass grown and path laid but it has lost the ingredients of a park inasmuch as no plantation now can be grown. Trees cannot be planted and rather while making underground construction many trees have been cut. Now it is more like a terrace park. Qualitatively it may still be a park but it is certainly a park of different nature. By construction of underground shopping complex irreversible changes have been made. It was submitted that the park was acquired by the State Government in the year 1913 and was given to the Mahapalika for its management. This has not been controverted. Under Section 114 of the Act it is the obligatory duty of the Mahapalika to maintain public places, parks and plant trees. By allowing underground construction Mahapalika has deprived itself of its obligatory duties to maintain the park which cannot be permitted. But then one of the obligatory functions of the Mahapalika under Section 114 is also to construct and maintain parking lots. To that extent some area of the park could be used for the purpose of constructing underground parking lot. But that can only be done after proper study has been made of the locality, including density of the population living in the area, the floating population and other certain relevant considerations. This study was never done. Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort Case (1997) 1 SCC 388. Public Trust doctrine is part of Indian Law. In that case the respondent who had constructed a motel located at the bank of river Beas interfered with the natural flow of the river. This Court said that the issue presented in that case illustrated the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change.
Para-60: In the treatise : Environmental Law and Policy: Nature, Law and Society by Plater Abrams Goldfarb (American Casebook series 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that :long ago there developed in the law of the Roman Empire a legal theory known as the Doctrine of the Public Trust. In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated: the scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests  like the air and the sea  have such importance to the citizenry as whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of the nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principle purpose of government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit .. With reference to a decision in Illinois Centralk Railroad Company Vs. Illinois, (1892) 146 US 387, it was stated that the Court articulated in that case the principle that has become the central substantive thought in public trust, litigation. When a state holds a resource which is available for the free use of the general, a Court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties. This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.
..
..
..
71. It is not disputed that there is a Master Plan applicable to city of Lucknow. This Master Plan is prepared under the Development Act. It was submitted by the builder that the park could be exploited for commercial purposes as Aminabad has been shown to be a commercial area. No doubt Aminabad is a commercial area but that does not mean that the park can be utilized for commercial purposes. Rather using the park for commercial purposes would be against the Master Plan. However, in letter dated October 16, 1993 by Vice-Chairman, LDA to the Mahapalika did say:
I am to inform you in this regard that the land use of the Jhandawala Park situated in Aminabad is commercial one as per the Master Plan. This department has no objection on the layout plan submitted accordingly

9. Their Lordships further observed in paragraph 78 as follows:-
78. The facts and circumstances when examined point to only one conclusion that the purpose of constructing the underground shopping complex was a mere pretext and the dominant purpose was to favour the M.I.Builders to earn huge profits. In depriving the citizens of Lucknow of their amenity of an old historical park in the congested area on the specious plea  of decongesting the area Mahapalika and its officers forgot their duty towards the citizens and acted in a most brazen manner.

10. In the case of Pt.Chet Ram Vashist Vs. Municipal Corporationof Delhi reported in AIR 1995 SC 430 the question that fell for consideration was as to whether the Municipal Corporation of Delhi in absence of any provision in the Delhi Municipal Corporation Act, 1957 was entitled to sanction the plan for building activities with condition that the open space for parks and schools be transferred to the Corporation free of cost. The Supreme Court held that the Corporation shall have no right to change the user of the land which shall be for beneficial enjoyment of the people. Their Lordships further held that the Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of society, but it has no right to transfer the land. Their Lordships held in paragraph  6 as follows:-
6. Reserving any site for any street, open space, park, school, etc in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned lay-out plan. But the question is, does it entitled the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred in the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for parks and school was an order for transfer without there being any sanction for the same in law.

11. In the case of Dr.G.N.Khajuria Vs. Delhi Development Authority reported in AIR 1996 SC 253 Delhi Development Authority permitted a nursery school to be opened in Park No.6 of Pocket A of Sarita Vihar in complete violation of the provisions of Delhi Development Act, 1957. The said decision of the Authority was challenged. In that case the Supreme Court observed:-
8. We, therefore, hold that the land which was allotted to respondent No.2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No.2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No.2 should be cancelled and we order accordingly. The fact that respondent No.2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been done on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots. We would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No.2 or by any other body.

12. It has not been disputed by the 2nd respondent-Corporation that the land in question has been used as park and playground for the last several decades. There is a basket ball ground in the said park, which is said to be an historical ground for many aspiring basketball players of the country. Many basketball training sessions and tournaments have been conducted there, and several high dignitaries visited the place and distributed prices to the winners of such tournaments. Similarly, public at large had been using the park since several decades. Learned counsel for the petitioner drawn our attention to Section 2(34) of the Tamil Nadu Town and Country Planning Act inter alia defines public open space, which means any land whether enclosed or not belonging to the Central or any State Government or any local authority or any body corporate, owned or controlled by the Central or any State Government on which there is no building or of which not more than one twentieth part is covered with buildings, and the whole or the remainder of which is used for purpose of recreation, air or light. Therefore, evidently the playground and the park could not be brought within the definition of public open space. It has also not been disputed that the playground at Venkata Narayana Road, T.Nagar has been listed as the playground both under the Tamil Nadu Parks, Play Fields and Open Spaces (Preservation and Regulation) Act, 1959 and the Development Control Rules. Rule  4(a) of the Development Control Rules provides that where the use of the site or the premises is specifically designated as open space, it shall be used only for that purpose for which it has been so designated.
13. From the Report it appears that T.Nagar has been shown primarily as commercial locality in Chennai. But, it appears that initially T.Nagar was primarily a residential area and only during the past few years there has been development in mushroom growth of commercial establishments. Many illegal constructions have been made for commercial purposes without providing space for car parking, as a result the regular stream of customers visiting these shopping complexes cause traffic congestion. In order to facilitate the customers visit in those shopping complexes and commercial establishments the respondents have decided to provide underground car parking by changing the character of the land which has been used as playground and park for the last six decades.

14. Prima facie we have no hesitation in holding that such decision of the respondent for using the park and the playground for the purpose of providing car parking and to facilitate the customers and the visitors for the shopping complexes and commercial establishments is illegal, arbitrary, unwarranted and unjustified.

15. It was strenuously contended by the learned counsel appearing for the 2nd respondent  Corporation of Chennai that this writ petition cannot be treated as a public interest litigation inasmuch as the petitioner in order to protect his vested interest over the land in question has moved this Court by way of public interest litigation. We are unable to accept the contention made by the learned counsel for the 2nd respondent for two reasons. Firstly, the petitioner is not claiming any personal interest over the land in question which has been used as a park and the playground by the general public and not by a particular community. Secondly, because of the mushroom growth of illegal construction of commercial establishments and shopping complexes there has been traffic congestion, which necessitated the provision for car parking. These commercial establishments and shopping complexes have been constructed without keeping any provision for car parking.

16. As noticed above, the land in question has been used by the public as park and playground for the last more than five decades and this is only the place of enjoyment for the public of that locality. It is well settled that right to life is not only fundamental right but also right to lead a decent life and to enjoy fresh air and water by using parks and greeneries, which is meant for the public at large.    

17. During the course of argument the learned counsel for the second respondent would submit that apart from underground parking facility a commercial complex is also proposed, inter alia providing restaurants and other facilities to cater to the needs of the persons who use the car parking facility.  It is further submitted that by establishing a commercial complex it would add to the revenue, as the revenue generated from the car parking alone would not be sizable.  Therefore, it is contended that the entire project as conceived is in the interest of the general public.   We however fail to see any public interest as projected by the second respondent.  In fact this commercial complex proposed was not mentioned originally.  Significantly, even in the notice issued for public hearing no such proposal was projected.  Thus it appears that the impugned proposal includes commercial venture; which is impermissible in a site which has been reserved for recreational purpose.  An attempt was made by the second respondent to justify their proposal by drawing an analogy to that of the Metro Rail Project, at New Delhi, the Palika Bazaar at New Delhi etc.  In our view the submission is misconceived.  The sole determinative factor in a case like the present one, shall be classification of the land in question.  It is not in dispute that the land in question has been classified as "play ground", notified as such in Annexure III of the Development Control Rules, which lists out the areas included in open space and recreational use zone.  As observed by their Lordships of the Supreme Court in the Case Pt. Chet Ram Vashist, (supra) by virtue of the law, if an area is specified as open space the Corporation may at best get a right as a "custodian of public interest" to manage it in the interest of the society in general.  Any breach of this custodianship and any attempt to change the 'use' of such land would be impermissible under law and would be against public interest.  

18. After giving our anxious consideration in the matter, and considering the fact that the land used as park and play ground for the last 50 years, the Corporation cannot be allowed to use the said play ground for construction of underground car parking. The decision of the Corporation to that effect is, therefore, declared illegal and unjustified.

19. We, therefore, allow this petition and restrain the respondents, their agents or servants from constructing an underground car park in the play ground in question situated at Venkata Narayana Road, in the city of Chennai or for converting it for any other purpose. No costs. Consequently, miscellaneous petitions are closed.

Index:Yes  (M.Y.E., C.J.)  (T.S.S., J)
Internet:Yes     10.08.2010
Sm/pv









Copy to:

1. State of Tamil Nadu,
    rep. by its Secretary,
    Department of Municipal Administration & Water Supply,
    Fort St.George, Chennai  600 009.

2. The Commissioner,
    Corporation of Chennai,
    Ripon Buildings,
    Chennai  600 003.
















The Honble Chief Justice
     and
      T.S.Sivagnanam, J
-------------------------------------
pv/-















  Pre-delivery Order in
   W.P.No. 4647 of 2010












Delivered on: 10.08.2010

   

writ of certiorarified mandamusto call for the records of the 2nd respondent pursuance to his proceeding Nil dated 24.06.2010 which was published on 1.7.2010 and quash the same

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26..08..2010

CORAM

THE HONBLE Mr.M.Y.EQBAL, CHIEF JUSTICE
and
THE HONBLE Mr.JUSTICE T.S.SIVAGNANAM

W.P.Nos. 16383, 15566 & 18451 of 2010
&
W.P.(MD) Nos.9090 & 9119 of 2010
&
M.P.Nos.1 & 2 of 2010 in W.P.No.16383 of 2010, 1 of 2010 in W.P.No.15566 of 2010, 1+1 of 2010 in W.P.(MD)No.9090/2010, 1 to 4 of 2010 in W.P.No.9119 of 2010
& 1 of 2010 in W.P.18451 of 2010
-------------
W.P.No.16383 of 2010
K.Appadurai,
S/o.P.Kandavel,
Bathrakaliamman Koil Street,
Vadugapatti (PO),
Periyakulam Taluk,
Theni District. ..Petitioner.
Vs.
1. The Secretary to Government,
    Public (Special.A) Department,
    Government of Tamil Nadu,
    Secretariat, Chennai  600 009.

2. The Principal Secretary to Government,
    Social Welfare & Noon Meal Project (SW4) Department,
    Government of Tamil Nadu,
    Secretariat,
    Chennai  600 009. ..Respondents.

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus calling for the records relating to the impugned notification issued by the 1st respondent in the Internet and published in the Hindu dated 1.7.2010, inviting application for Direct Recruitment and Appointment for the post of District Judges (Entry Level) and quash the same and consequently direct the 1st respondent herein to publish afresh notification in a transparent manner indicating the number of vacancies ear-marked for disabled applicants in accordance with Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995  and pass such further or other orders.
------------

For Petitioner :: Mr.M.Venkadesan
For Respondents :: Mr.J.Raja Kalifulla, Govt. Pleader
-------------
W.P.No.15566 of 2010
Manikandan Vathan Chettiar,
Advocate,
28, Sait Colony, 1st Street,
Chennai  8. ..Petitioner.
Vs.
1. The Secretary to Government,
    Public (Special.A) Department,
    Secretariat, Chennai.

2. The Registrar General,
    High Court,
    Madras. ..Respondents.

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of declaration declaring that propounding the impugned notification dated 24.06.2010 issued by the 1st respondent as ultra vires Articles 14 and 141 of the Constitution of India, and direct the respondents to issue a de novo notification in consonance with all constitutional diktats and render justice.
-----------
For Petitioner :: V.Manikandan Vathan Chettiar
  (Petitioner in Person)
For Respondent-1 :: Mr.J.Raja Kalifulla, Govt. Pleader
For Respondent-2 :: Mr.R.Muthukumaraswamy,
    Senior Counsel
   For Mr.K.Ravichandrababu

W.P.No.18451 of 2010
M.Selvaraj, M.Sc., L.L.M.,
S/o.Sri. S.V. Munuswamy,
Hindu, aged about 47 years,
No.26, A, IAF Road,
Srinivasan Nagar,
Selaiyur,
Chennai  73. ..Petitioner.

Vs.
The State of Tamil Nadu,
Rep. by Secretary to Government,
Public (Special.A) Department,
Secretariat,
Chennai  600 009. ..Respondent.

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ in the nature of declaration declaring the rule of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional and consequently, the notification dated 24.06.2010 issued by the respondent also be declared unconstitutional and thus render justice.
-------------
For Petitioner :: Mr.G.Justin
For Respondent :: Mr.J.Raja Kalifulla, Govt. Pleader
-------------

W.P.(MD)No.9090 of 2010

R.Vidhya,
No.5-7/28-3,
Anupallavi Nagar,
Kalai Nagar Extension,
Madurai  17. ..Petitioner.
Vs.
1. The Secretary to Government,
    Public (Special.A) Department,
    Secretariat, Chennai.

2. The Registrar General,
    Madras High Court,
    Chennai.
3. The Bar Council of India,
    New Delhi.
4. The Bar Council of Tamil Nadu,
    High Court Campus,
    Chennai  104. ..Respondents.
    (R3 and R4 are impleaded as party respondents as per order of the
     Court dated 16.07.2010 in W.P.(MD) No.9090/10)

PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorari to call for the records of the 1st respondent in Ref.No.DIPR/841/display/2010 dated 24.06.2010 and to quash the notification issued by the Secretary to Government (Special.A) Department in Ref. No.DIPR/841/display/2010 dated 24.06.2010 in so far inviting application from Assistant Public Prosecutor Grade I and II and pass any appropriate orders and thus render justice.
------------
For Petitioner :: Mr.N.Sundareshan
For Respondent-1 :: Mr.P.Kumaresan, Public Prosecutor
For Respondent-2 :: Mr.R.Muthukumaraswamy, Senior Counsel
  For Mr.K.Ravichandrababu
For Respondents3&4 :: Mr.P.S.Raman, Advocate General
For Petitioner in M.P.1/10 :: Mr.K.Doraiswamy, Senior Counsel
(Impleading Petition)   For Muthumani Doraisamy
-------------

W.P.No.9119 of 2010
B.Ramesh Babu,
S/o.Balaguru,
Flat No.2956,
TNHB Colony,
Villapuram,
Madurai  1. ..Petitioner.
Vs.
1. The Registrar General,
    High Court of Madras,
    Chennai.


2. The State of Tamil Nadu,
    Rep. by its Secretary,
    Public (Special.A) Department,
    Secretariat,
    Chennai.

3. The Chairman,
    Co-ordination Committee for
    The Persons with Disabilities
    (Equal Opportunity, Protection of Rights and
     Full Participation) Committee,
     Department of Social Welfare,
     State of Tamil Nadu,
     Secretariat,
     Chennai. ..Respondents.


PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamusto call for the records of the 2nd respondent pursuance to his proceeding Nil dated 24.06.2010 which was published on 1.7.2010 and quash the same in so far as the petitioner is concerned and direct the respondents to include the physically disabled persons to be appointed as District Judge direct selection and reserve a post by giving effect to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and pass such other or further orders.
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For Petitioner :: Mr.K.P.S.Palanivel Rajan
For Respondent-1 :: Mr.R.Muthukumaraswamy, Senior Counsel
  For Mr.K.Ravichandrababu
For Respondent-2 :: Mr.P.Kumaresan, Public Prosecutor

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C O M M O N O R D E R
The Honble The Chief Justice

Since, in all these writ petitions the petitioners have attacked and assailed the notification calling for application for appointment to the post of District Judges (Entry Level) on various grounds, they have been heard together and disposed of by this common order.
2. For better appreciation, the notification published in the daily newspaper The Hindu on 01.07.2010 issued by the Government of Tamil Nadu, Public (Special.A) Department is reproduced herein under.
GOVERNMENT OF TAMIL NADU
Public (Special.A) Department,
Secretariat, Chennai  600009.
NOTIFICATION CALLING FOR APPLICATIONS FOR THE POST OF DISTRICT JUDGES (ENTRY LEVEL)
Applications are invited by the Government of Tamil Nadu for appointment of seventeen (17) posts of District Judges (Entry Level) in the Tamil Nadu State Judicial Service to be made by direct recruitment under the amended provisions of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 from Advocates or Pleaders in India who have not less than seven years practice and Practising as on the date of this notification.
The distribution of the above said 17 vacancies is as follows:
General Turn -  4 (1 Woman)
Scheduled Caste - 1 (1 Woman)
(Arunthathiyars on preferential basis)
Most Backward Classes & - 4 (1 Woman)
Denotified Communities
Backward Classes - 4 (1 Woman)
(Other than Backward Class Muslims)
Scheduled Caste - 3 (1 Woman)
Backward Class Muslims - 1
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  Total - 17
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The reservation in recruitment in respect of differently abled persons is governed by the orders issued in G.O.Ms.NO.87, SW&NMP (SW-4_ Department, Dated:17.7.2008.
2. An Applicant should be of sound health and active habits and free from any bodily defect or infirmity making him/her unfit for appointment. The 17 posts of District Judges (Entry Level) shall be filled by direct recruitment from among the eligible advocates on the basis of the written and viva-voce test prescribed and to be conducted by the High Court of Madras in accordance with the rules.
3. A candidate shall along with his application:
(i) If he/she is an Advocate or Pleader, produce from the Presiding Officer of the Court in which he/she is actually Practising, a certificate indicating the length of his/her practice;
(ii) If he/she is an Assistant Public Prosecutor, Grade-I or an Assistant Public Prosecutor, Grade  II, produce from the Collector of the District concerned, a certificate indicating the length of his/her service.
(iii) Produce a certificate of good character, from a Senior Advocate/Counsel and another from a responsible person, not being a relative but who is well acquainted with him/her in private life.
4. The selection shall be made based on the results of written examination and viva voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva voce shall be 75% and 25% respectively.
5. The notification, enlisting the successful candidates prepared under these rules shall be published in the Tamil Nadu Government Official Gazette and it shall cease to be operative as from the date of Publication of the next list of successful candidates prepared under these rules, in the Tamil Nadu Government Official Gazette.
6. (i) The applicant 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 in the Bar Council of Tamil Nadu; and in the case of candidates enrolled in the Bar Councils of other States, they should submit proof of transfer of their enrollment to the Bar Council of Tamil Nadu.
(ii) The applicant must be Practising on the date of Notification as an advocate and must have so practiced for a period of not less than seven years as on such date.
(iii) The applicant must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year 2010.
(iv) The scale of pay for the post of District Judges is Rs.16750-400-19150-450-20500/- (Pre-revised Scale)
7. The written examination will be of 3 hours duration involving Law Paper Part  I (Civil), Law Paper Part  II (Criminal) and Law Paper Part  III (General) carrying 25 marks each (75 marks total) and 25 marks is ear-marked for viva-voce.
The Question Papers on Law Paper Part  I, II & III will be set in English as well as in Tamil. The candidates shall answer either in English or in Tamil/ but not in both.
The written examination will precede the viva-voce examination. As to short listing the candidates, their length of practice at the bar and the marks obtained by them in the written examination will be considered and such short listed candidates alone will be called for viva-voce examination.
8. The application in the prescribed format shown below along with the attested copes of certificates as required should be sent by Registered Post with acknowledgement due to the Secretary to Government of Tamil Nadu, Public (Special.A) Department, Secretariat, Chennai  600 009 so as to reach the office on or before 5.45 pm on 16.07.2010. Candidates should check up the correctness of the particulars furnished in the application. Candidates should submit only one application for the post. The written examination will be held at Chennai on 01.08.2010 and the venue of examination will be intimated later by the High Court of Madras.
Candidates shall enclose a Demand Draft for Rs.250/- (Rs.100/- in case of SC candidates) towards examination fee payable by way of Demand Draft in favour of the Registrar General, High Court of Madras along with the application form.
Two passport size photographs of the candidate (one to be affixed in the application from) and a copy of latest community certificate shall be enclosed.
9. No traveling allowance will be paid to the applicant for attending written examination/interview and for joining the post if he/she is selected.
10. Every person appointed to the post of District Judge by direct recruitment shall,
(a) from the date on which he/she joins duty, be on probation for a total period of two years on duty within a continuous period of three years;
(b) undergo training as prescribed by the High Court of Madras.
(c) within the period of probation, pass the Account Test for Executive Officers.
Only after satisfactory completion of the training, the direct recruit will be posted as District Judge.
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3. W.P.(MD)No.9090 of 2010 was filed in Madurai Bench of the Madras High Court. The petitioner therein sought issuance of a writ of certiorari for quashing the notification as contrary to Article 14 of the Constitution of India as the service personnel and the non-service personnel form a different class. It is stated that a person not already in service of the Union or of the State shall only be eligible to be appointed, if he had been for not less than 7 years of service as Advocate or Pleader. The main contention of the petitioner therein is that the Assistant Public Prosecutors Grade  I and Grade II, who were employees under the State Government, drawing salary from the exchequer, are not entitled to and eligible for appearing in the examination.
4. In W.P.No.16383 of 2010 and W.P.(MD)No.9119 of 2010 the aforesaid notification was challenged on the ground that the said notification does not indicate the number of vacancies earmarked for disabled candidates in accordance with Section  33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is stated that while distributing the 17 vacancies against each category, it does not show the category of disabled persons and reservation in the distribution of vacancies to disabled persons. According to the petitioner, the rule of 3% reservation for disabled persons is applicable for mass appointment in every establishment. The said minimum of 3% has been adopted as per Section-33 read with Section 2(k) of the aforesaid Act of 1995. The petitioners case is that the disabled persons constitute a special category, and reservation by government for them is a special drive to ensure and guarantee equal opportunities to them in the society.
5. In W.P.No.15566 of 2010 the above referred to notification was challenged on the ground that apart from 100% marks, the length of bar experience is stated as a criteria for short listing the candidates to appear in the viva-voce, without any explanation as to the manner in which it is proposed to be done. The petitioners case is that as per the decisions of the Supreme Court the marks allotted to the viva-voce shall not exceed 12.50% of the total marks, whereas the impugned notification prescribes as much as 25% of the marks to the viva-voce, which is unconstitutional. The impugned notification also suffers from serious illegality in as much as apart from 100% marks the length of bar experience is stated as a criteria for short listing the candidates for viva-voce without giving any explanation as to the manner in which it is proposed to be done. The petitioner also challenged the notification on the ground that no syllabi has been prescribed for the examination, which is contrary to all canons of reasonableness.
6. In W.P.No.18451 of 2010 the petitioner sought for a declaration to declare that the Rules of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional, and consequently the impugned notification issued by the respondent for appointment to the post of District Judges (Entry Level) as also ultra vires and unconstitutional. It is stated that the candidates in the subordinate judicial service as Magistrates, Sub Judges and District Munsifs, who have put in 7 years of practice before their appointment in such service, can also be made eligible to appear for the examination for the recruitment of District Judges as in the case of Assistant Public Prosecutors Grade-I and Grade-II.  According to the petitioner therein, the Assistant Public Prosecutors Grade  I and Grade II are employees of the State and they are not pleaders. The respondents having made eligible the Assistant Public Prosecutors Grade  I and Grade  II, it is wholly unjustifiable to exclude the Magistrates, District Munsifs and Sub Judges to appear for the examination, as they are also government servants, and they must also be given a chance for their career advancement based on merit.
7.  In W.P.(MD)No.9090 of 2010 a counter affidavit has been filed by the second respondent therein viz., the Registrar General, High Court, Madras. It is stated that as per the order of the Supreme Court in W.P.(C) No.1022 of 1989 dated 21.03.2002, the Full Court of the Madras High Court re-drafted the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007 and the Draft Rules were approved by the Government of Tamil Nadu, which came into effect from 19.01.2007. It is stated that pursuant to the order passed by a Division Bench of this Court in W.P.Nos.14499 of 2009 & Batch on 01.12.2009 and 26.02.2010 the Government was directed to forward the Draft Notification calling for applications containing the application proforma to fill up 17 posts of District Judges (Entry Level) by direct recruitment from the Bar for approval of the High Court as per the Rules. The Draft Notification forwarded by the Government was considered and approved by the High Court, and accordingly, the Government published the notification impugned in the writ petition. It is stated that as per Serial No.3(iii) of the Schedule to Rule  5 of the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007 applications were invited for appointment of 17 posts of District Judges (Entry Level), and it was mentioned that the candidates, along with their application, shall furnish the certificates mentioned therein. The second respondent justified the notification by referring to Article 233 (2) of the Constitution, which would include Law Officers practising before a Court of Law. Hence, according to the second respondent the notification inviting applications from Advocates/Pleaders, Assistant Public Prosecutors Grade  I and II for appointment to the post of District Judge (Entry Level) is perfectly justified.
8. In the separate counter affidavits filed by the first respondents in W.P.(MD)No.9119 of 2010 the common stand taken are that the Government of Tamil Nadu in G.O.Ms.No.87 dated 17.07.2008, issued orders to adhere to the system of 200 point roster, dividing into six classifications granting an equal ratio of 1:1:1 to the disabled category i.e., Blind, Deaf and Orthopaedically challenged as far as possible and to select differently abled persons among the 33 vacant posts in each division. It is stated that though the nature of duties and responsibilities attributed to the post of District Judge (Entry Level) requires persons free from certain disabilities like blindness, total deafness, etc. so as to discharge his official duties, every possible steps have been taken to give equal opportunities to the eligible disabled persons, and hence, the operation of the relevant G.O. in respect of differently abled persons in the present selection process was not notified in the notification calling for applications.
9. In W.P.No.15566 of 2010 the main defense taken by both the respondents are that as per the recruitment rules the selection shall have to be made based on the result in the written examination and the viva-voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in their written examination and viva-voce taken together, subject to the rule of reservation for appointments. The maximum marks allotted to the written examination and the viva-voce shall be 75% and 25%. It is stated that the marks fixed for the viva-voce i.e., 25% is neither violative of any rules nor against the decisions of the Supreme Court.
10. First, we will take up the writ petition being W.P.No.9090 of 2010 wherein the notification inviting applications for appointment for the post of District Judge (Entry Level) was challenged on the ground that inviting the applications from the Assistant Public Prosecutors Grade - I and II for appointment to the said post is illegal and unconstitutional, and against the provisions of Article 223 of the Constitution of India.
11. Before coming to this issue, it would be useful to state here the brief history about the procedure for appointment for the post of District Judges (Entry Level). Before independence, originally, the post of District and Sessions Judges and Additional Sub Judges were filled by persons from Indian Civil Service. In 1922, the Governor General in Council issued notification empowering the local government to make appointment to the said service from the Members of Provincial Civil Service (Judicial Branch) or from the Members of the Bar. In exercise of the power conferred by Section 246 and 250 of the Government of India Act, 1935, the Secretary of State for India framed Rules called Reserved Post (Indian Civil Service) Rules, 1938. Under those Rules the Governor was given power to appoint a District Judge from among the Members of the Judicial Service of the Province or from Members of the Bar.  Till India attained independence the position was that the District Judges were appointed by the Governor from these sources i.e., Indian Civil Service, Provincial Judicial Service and the Bar. But, after independence in 1947 recruitment to the Indian Civil Service was discontinued and the Government of India decided that the Members of the newly created Indian Administrative Service would not be given judicial post. Thereafter, District Judges had been recruited only either from the Judicial Service or from the Bar.
12. Article 233 deals with the appointments, postings and promotion of District Judges in any State. Article 234 deals with the recruitment of persons other than District Judges  to the judicial service. Article 233, which is relevant here, is quoted herein below:
233. Appointment of District Judges  (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
 
13. From a bare reading of Art. 233, it is manifest that it is a self-contained provision regarding the appointment of District Judges.  A qualification has been laid down in clause (2) of Art. 233 as to who will be eligible for the said post.  The provision in Art. 233 (2) has been discussed in series of decisions rendered by the Supreme Court and various High Courts.  The expression service used in clause (2) of Art. 233 means the judicial service.
14. In Satya Narain Singh Vs. High Court of Judicature, Allahabad reported in AIR 1985 SC 308 the facts of the case were that pursuant to the notification for appointment of District Judges by direct recruitment, members of the Uttar Pradesh Subordinate Judicial Service applied to the Uttar Pradesh Higher Judicial Service by direct recruitment. They claimed that each of them have completed 7 years of practice at the Bar even before their appointment to the judicial service and they are eligible to be appointed by direct recruitment to the higher judicial service. The said writ petition was dismissed by the High Court holding that the members of the Uttar Pradesh Judicial Service were not eligible to be appointed by direct recruitment. The matter ultimately went up to the Supreme Court. Dismissing the writ petitions their Lordships, after quoting Art. 233 of the Constitution, observed :-
Para-3: The first clause deals with appointments of persons to be, and the posting and promotion of, District Judges in any State while the second clause is confined in its application to persons not already in the service of the Union or of the State. We may mention here that Service of the Union or of the State has been interpreted by this Court to mean judicial service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommend a person for appointment as a District Judge. It is only in respect of the persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an Advocate or a Pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are members of a Judicial Service the 7 years rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship can not sail both the streams simultaneously. The dichotomy is clearly brought out by S.K.Das, J. in Rameshwar Dayal Vs. State Punjab (AIR 1961 SC 816)(supra) where he observes (at P.822):
 Article 233 is a self contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under Cl.(1) the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already in service, a qualification is laid down in Cl.(2) and all that is required is that he should be an advocate or pleader of seven years standing.
Again dealing with the cases of Harbans Singh and Sawhney it was observed.
We consider that even if we proceed on the footing that both those persons were recruited from the Bar and their appointment has to be tested by the requirements of Clause (2), we must hold that they fulfilled those requirements.
Clearly the Court was expressing the view that it was in the case of recruitment from the Bar, as distinguished from Judicial Service that the requirements of Cl.(2) had to be fulfilled. We may also add here earlier the Court also expressed the view, .we do not think that Cl.(2) of Art.233 can be interpreted in the light of the Explanation added to Articles 124 and 217.
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Para-5: Posing the question whether the expression the service of the Union or of the State meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State, the learned Chief Justice emphatically held that the expression the service in Art.233(2) could only mean the judicial service. But he did not mean by the above statement that persons who are already in the service, on the recommendation by the High Court can be appointed as District Judges, overlooking the claims of all other Seniors in the Subordinate Judiciary contrary to Art.14 and Art.16 of the Constitution.

15. In Chandra Mohan Vs. State of Uttar Pradesh reported in AIR 1966 SC 1987  a similar question came up for consideration before the Supreme Court. In that case the appointment of judicial officers to the post of Superior Judicial Service was challenged. The Supreme Court dismissed the appeals holding that the Uttar Pradesh Higher Judicial Service Rules providing for the recruitment of the District Judges from the persons in judicial service are constitutionally void. Their Lordships observed in paragraph 16 as follows:-
16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as District Judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a District Judge? The acceptance of this position would take us back to the pre-independece days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely., the judiciary shall be an independent service. Doubtless if Art.233(1) stood alone, it may be argued that the Governor may appoint any person as a District Judge, whether legally qualified or not, if be belongs to any service under the State. But Art.233(1) is nothing more than a declaration of the general power of the governor in the matter of appointment of District Judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in Cl.(2) thereof. Under Cl.(2) of Art.233 two sources are given, namely, (i) persons in the service of the Union or of the State and (ii) advocate or pleader. Can it be said that in the context of Ch.VI of Part VI of the Constitution the service of the Union or the State means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate courts, in which the expression the service appears indicates that the service mentioned therein is the service pertaining to Courts. That apart, Article 236(2) defines the expression judicial service to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. If this definition, instead of appearing in Art.236, there cannot be any dispute that the service in Art.233(2) can only mean the judicial service. The circumstances that the definition of judicial service finds a place in a subsequent Article does not necessary lead to a contrary conclusion. The fact that in Article 233(2) the expression the service  is used whereas in Arts.234 and 235 the expression judicial service is found is not decisive of the question whether the expression the service in Art.233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with District Judges. The expressions, exclusively and intended emphasise the fact that the judicial service consists only of persons intended to fill up the posts of District Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined judicial service in exclusive terms, having provided for appointments top that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a District Judge.

16. Rule 49 of the Bar Council of India Rules as it stood prior to 2001 reads as under:-
Rule-49: An advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern, so long as he continues to practice and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment.
Nothing in this Rule shall apply to a law officer of the Central Government or of a State or of any public corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full-time salaried employee.
Law officer for the purpose of this Rule means a person who is so designated by the term of his appointment and who, by the said term, is required to act and/or plead in courts on behalf of his employer.

17. In the case of Sushma Suri Vs. Government of National Capital Territory of Delhi reported in (1999) 1 SCC 330, the aforesaid Rule  49, as it stood prior to its deletion in 2001, was considered by the Supreme Court. In that case, in response to an advertisement issued by the Delhi High Court for appointment in Delhi Higher Judicial Service, the appellant working as an Additional Government Advocate in Government of India and also advocate on record of the Supreme Court, applied for the said post. But, she was not called for the interview on the ground that she was not eligible. The appellant moved the Delhi High Court in a writ petition and the same was dismissed on the ground that a Law Officer of the government, though entitled to enroll as an advocate for the purpose of Advocates Act, 1961, ceased to be a member of the Bar. The matter has been finally considered by the Supreme Court. The Supreme Court, taking into consideration Rule  49 of the Bar Council of India Rules, held that an advocate employed with the Government or a Body Corporate as its Law Officer even on terms of payment of salary would not cease to be an advocate.   Their Lordships observed in paragraphs 8, 9 and 10 as follows:-
8. For purposes of the Advocates Act and the Rules framed thereunder the law officer (Public Prosecutor or Government Counsel) will continue to be an advocate. The intention of the relevant Rules is that a candidate eligible for appointment to the Higher Judicial Service should be a person who regularly practises before the court or tribunal appearing for a client.
9. In Oma Shanker Sharma case, CWP No.1961 of 1987 the Delhi High Court approached the matter in too pedantic a manner losing sight of the object of recruitment under Article 233(2) of the Constitution. Whenever any recruitment is conducted to fill up any post, the area of recruitment must be as broad-based as the Rules permit. To restrict it to advocates who are not engaged in the manner stated by us earlier in this order is too narrow a view, for the object of recruitment is to get persons of necessary qualification, experience and knowledge of life. A Government Counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description cannot be stated to be irrelevant nor detrimental to selection to the posts of the Higher Judicial Service. The expression members of the Bar in the relevant Rule would only mean that particular class of persons who are actually practising in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a court and if a Public Prosecutor or a Government Counsel is on the rolls of the Bar Council and is entitled to practise under the Act, he answers the description of an advocate.
10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of law officers of the Government and corporate bodies despite his being a full-time salaried employee if such law officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such law officer engaged by the Government does  whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression advocate as one who is actually practising before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.

18. In the case of State of U.P. Vs. Johri Mal, reported in (2004) 4 SCC 714, while discussing the rights and duties of the Public Prosecutors appointed in terms of Section 24 of the Code of Criminal Procedure, their Lordships held (Paras 39 & 50 at pp.734 &737) :
39. The appointment of Public Prosecutors, on the other hand, is governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule.
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50. The very premise whereupon the High Court has based its decisions, therefore, was incorrect. The impugned judgment, thus, cannot be sustained as it suffers from misdirection in law.
19. Section 2(1)(a) of the Advocates Act, 1961 (in short Act) defines the word Advocate which means an advocate entered in any roll under the provisions of this Act. Section 16 of the Act lays down the provisions for admission and enrollment of advocates. According to Section 17 every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926 and shall be enrolled as advocates under the said Act in any area to his intention of practice within the jurisdiction of the Bar Council. Section 24 of the Act prescribes the qualification for appointment as an advocate on the State Roll. According to this provision, a person shall be qualified to be admitted as an advocate on a State Roll if he fulfils certain conditions prescribed therein. Section 28 of the Act confers powers to the State Bar Councils to make rules to carry out the purposes of the Act. Section 29 categorically provides that the advocates are the only recognized class of persons entitled to practice law.  Similarly, Section 33 provides that it is the advocates alone whose names have been enrolled as advocates are entitled to practice law. For better appreciation, Sections 30 and 33 of the Act are quoted herein below:
30.Right of advocates to practice  Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends, -
(i)in all Courts including the Supreme Court;
(ii)before any tribunal or person legally authorized to take evidence; and
(iii)before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
..


33.Advocates Alone entitled to practice  Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person unless he is enrolled as an advocate under this Act.

20. Considering the aforesaid provisions it is manifest that all persons who have been enrolled as advocates are entitled to practice in a Court of Law except persons who ceased to be advocates and whose names have been de-listed or cancelled from the roll of the advocates maintained by the Bar Council.
21. In the case of Satish Kumar Sharma Vs. Bar Council of H.P. reported in (2001) 2 SCC 365, the aforesaid provisions of the Advocates Act were considered by the Supreme Court. In that case the appellant, having obtained LL.B degree, was appointed to the post of Assistant(Legal) by the H.P.State Electricity Board. The post was later redesignated as Law Officer Grade II. The Electricity Board thereafter issued permission to the appellant to act as an advocate on its behalf and also undertook to bear his enrollment expenses. After the filing of the enrollment application, the designation of the appellant was changed to Law Officer. The Bar Council thereafter issued a certificate of enrollment to the appellant and the appellant started functioning as an advocate. Subsequently, the Bar Council issued show cause notice to the appellant directing him to explain why his enrollment ought not to be cancelled. The Bar Council then passed a resolution withdrawing the enrollment of the appellant on the ground that under Rule  49 of the Bar Council of India Rules he was no longer entitled to enrollment after his promotion. The said resolution was challenged by the appellant in a writ petition, which was dismissed. The matter then went up to the Supreme Court where the appellant contended that paragraph  2 of Rule 49 of the Bar Council of India Rules had created an exception to the bar against full time salaried employees from being enrolled as advocates. It was contended that the exception was in respect of Law Officers of Central or State or Public Corporation or statutory bodies who are entitled to enrollment under the Rules of their respective State Bar Councils. Dismissing the appeal the Supreme Court held that  -

19. It is an admitted position that no rules were framed by the respondent entitling a Law Officer appointed as a full-time salaried employee coming within the meaning of para 3 of Rule 49 to enroll as an advocate. Such an enrolment has to come from the rules made under Section 28(2)(d) read with Section 24(1)(e) of the Act. Hence it necessarily follows that if there is no rule in this regard, there is no entitlement. In the absence of express or positive rule, the appellant could not fit in the exception and the bar contained in the first paragraph of Rule 49, was clearly attracted as rightly held by the High Court. Added to this, in the light of terms of appointment/promotion orders issued by the Board to the appellant, it is clear that the first appointment of the appellant was as Assistant (Legal). Subsequent promotions as Under-Secretary (Legal)-cum-Law Officer, Deputy Secretary (Legal)-cum-Law Officer and Additional Secretary (Law) show that the appellant was not designated as Law Officer. Similarly, there is no indication in any of the appointment/promotion orders issued to the appellant that he was to act or plead in the courts of law on behalf of the Board except in the order dated 5-7-1984. At any rate from these orders it cannot be said that he was/is required to act or plead in courts on behalf of the employer mainly or exclusively so as to come within the meaning of Law Officer for the purpose of Rule 49. It appears the modified orders dated 11-6-1984 and 5-7-1984 were issued by the Board in order to get enrolment of the appellant as an advocate on the roll of the respondent. None of the appointment/promotion orders issued to the appellant indicate that his duties were exclusively to act or plead in courts on behalf of the Board as Law Officer. These orders clearly show that the appellant was required to work in the Legal Cell of the Secretariat of the Board; was given different pay scales; rules of seniority were applicable; promotions were given to him on the basis of the recommendations of the Departmental Promotion Committee; was amenable to disciplinary proceedings, etc. Further looking to the nature of duties of Legal Cell as stated in the regulation of business of the Board extracted above, the appellant being a full-time salaried employee had/has to attend to so many duties which appear to be substantial and predominant. In short and substance we find that the appellant was/is a full-time salaried employee and his work was not mainly or exclusively to act or plead in court. Further, there may be various challenges in courts of law assailing or relating to the decisions/actions taken by the appellant himself such as challenge to issue of statutory regulation, notification or order; construction of statutory regulation, statutory orders and notifications, the institution/withdrawal of any prosecution or other legal/quasi-legal proceedings etc. In a given situation the appellant may be amenable to disciplinary jurisdiction of his employer and/or to the disciplinary jurisdiction of the Bar Council. There could be conflict of duties and interests. In such an event, the appellant would be in an embarrassing position to plead and conduct a case in a court of law. Moreover, mere occasional appearances in some courts on behalf of the Board even if they be, in our opinion, could not bring the appellant within the meaning of Law Officer in terms of para 3 of Rule 49. The decision in Sushma Suri v. Govt. of National Capital Territory of Delhi2 in our view, does not advance the case of the appellant. That was a case where meaning of expression from the Bar in relation to appointment as District Judge requiring not less than seven years standing as an advocate or a pleader came up for consideration. The word advocate in Article 233(2) was held to include a Law Officer of the Central or State Government, public corporation or a body corporate who is enrolled as an advocate under exception to Rule 49 of Bar Council of India Rules and is practising before courts for his employee. Para 10 of the said judgment reads: (SCC pp. 336-37)
 10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of Law Officers of the Government and corporate bodies despite his being a full-time salaried employee if such Law Officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its Law Officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such Law Officer engaged by the Government does  whether he acts or pleads in court on behalf of his employer or otherwise? If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression advocate as one who is actually practising before courts which expression would include even those who are Law Officers appointed as such by the Government or body corporate.(emphasis supplied)
20. As stated in the above para the test indicated is whether a person is engaged to act or plead in a court of law as an advocate and not whether such person is engaged on terms of salary or payment by remuneration. The essence is as to what such Law Officer engaged by the Government does.

22. In the light of the ratio laid down by the Supreme Court in the decisions quoted herein before, it can safely be concluded that the nature of duties of the Assistant Public Prosecutors is to act and plead in Courts of Law on behalf of the State as Advocates. Even after becoming Assistant Public Prosecutors they continue to practice as advocates and plead the cases on behalf of the Government and their names remained in the roll of advocates maintained by the Bar Council.   As Public Prosecutors they acquired much experience in dealing criminal cases.
23. It was argued on behalf of the petitioners that the note appended to Rule 49 of the Bar Council of India Rules having been deleted by a resolution dated 22nd June, 2001 of the Bar Council of India, the ratio decided by the Supreme Court in Sushma Suri Case (supra) will not apply, and therefore, an advocate who is employed as a full time salaried employee of the government, ceases to practice as an advocate so long as he continues in such employment.   The submission made by the counsel has no substance.
24. As noticed above, Rule 49 of the Bar Council of India Rules provides an exception where in case of Law Officers of the government and corporate bodies, despite they being employed by the government as Law Officers, they cannot cease to be advocates so long as they are required to plead in the courts. For example, Assistant Public Prosecutors so appointed by the government on payment of salary their only nature of work is to act, plead and defend on behalf of the State as an advocate. Hence, an advocate employed by the government as Law Officer namely, an Assistant Public Prosecutor on terms of payment of salary would not cease to be an advocate in terms of Rule 49 of the Bar Council of India Rules for the purpose of appointment, as such advocate is required to act or plead in courts on behalf of the State. If, in terms of the appointment, an advocate is made a Law Officer on payment of salary to discharge his duties at the Secretariat and handle the legal files, he ceased to be an advocate. In our considered opinion, therefore, the deletion of the note appended to under Rule 49 of the Bar Council of India Rules will not in any way affect the legal proposition of law. We are also of the view that in the light of the relevant clauses of the Advocates Act, 1961 it will not debar the Assistant Public Prosecutors to continue and plead in courts as an advocate.
25. A similar question arose before the Madhya Pradesh High Court in the case of Smt.Jyoti Gupta Vs. Registrar General, High Court of M.P. (2008(3)MPHT 13 = MANU/MP/0151/2008) as to whether the Assistant Public Prosecutors are eligible to apply for appointment for the post of District Judges, their Lordships held -
Para-16. A careful reading of the note provided in the exception states that nothing in Rule 49 of the Bar Council of India Rules shall apply to a Law Officer of the Central Government, State Government or a body corporate who is entitled to be enrolled under the rules of the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 despite his being a full-time salaried employee. Hence, the exception to Rule 49 has been provided because of the provisions in the Rules of State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 for a Law Officer of the Central Government or the State Government or a body corporate to be admitted into the roll of the State Bar Council if he is required by the terms of his appointment to act and/or plead in Courts on behalf of his employer. In other words, if the rules made by the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 provide for admission as an Advocate, enrolment in the State Bar Council as an Advocate or a Law Officer of the Central Government or the State Government or a body corporate, who, by the terms of his employment, is required to act and/or plead in Courts on behalf of his employer, he can be admitted as an Advocate and enrolled in the State Bar Council by virtue of the provisions of Sections 24(1)(e) and 28(2)(d) of the Advocates Act, 1961 and the rules made thereunder by the State Bar Council and he does not cease to be an Advocate on his becoming such Law Officer of the Central Government, State Government or a body corporate. As we have seen, the State Bar Council of M.P. has provided under Proviso(i) of Rule 143 that a Law Officer of the Central Government or a Government of State or a public corporation or a body constituted by a statute, who by the terms of his appointment, is required to act and/or plead in Courts on behalf of his employer, is qualified to be admitted as an Advocate even though he may be in full or part-time service or employment of such Central Government, State Government, public corporation or a body corporate. The position of law, therefore, has not materially altered after the deletion of the note contained in the exception under Rule 49 of the Bar Council of India Rules by the resolution of the Bar council of India, dated 22nd June, 2001.
..
.
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Para-21. In the result, we hold that if a person has been enrolled as an Advocate under the Advocates Act, 1961 and has thereafter been appointed as Public Prosecutor/Assistant Public Prosecutor or Assistant District Public Prosecutor and by the terms of his appointment continues to conduct cases on behalf of the State Government before the Criminal Courts, he does not cease to be an Advocate within the meaning of Article 233(2) of the Constitution and Rule7(1)(c) of M.P.Uchchatar Nyayik Sewa (Bharti Tatha Sewa Shartein) Niyam, 1994 for the purpose of recruitment to the post of District Judge (Entry Level) in the M.P.Higher Judicial Service. 
26. Having gone through the relevant provisions of the Constitution, the Advocates Act and the Bar Council Rules and considering the ratio laid down by the Supreme Court as discussed hereinabove, we do not find any merit in the writ petition, W.P. No.9090 of 2010.
W.P.Nos.16383 of 2010 & W.P.(MD)No.9119 of 2010:
  27. As stated above in these two writ petitions, the impugned notification has been challenged by the petitioners on the ground that the said notification does not indicate the number of vacancies earmarked for disabled candidates as per the provisions of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Learned counsel appearing for the petitioners in these two writ petitions contended that while distributing 17 vacancies against each category, the notification does not show the category of disabled persons and reservation in the distribution of vacancies to disabled persons. Learned counsel submitted that rule of 3% reservation for disabled persons is applicable inasmuch as the disabled persons constitute a special category.
28. As against that the respondent  Government, in its counter affidavit filed in W.P.No.16383 of 2010, stated that the reservation in recruitments in respect of disabled persons is governed by the G.O.Ms.No.87 dated 17.07.2008. As per the said G.O., orders were issued to adhere to the system of 200 point roster dividing into 6 classifications granting an equal ratio of 1:1:1 to the disabled category viz., blind, deaf and orthopaedically challenged. It is stated in the impugned notification that the reservation roster applicable to 17 vacancies are earmarked, and in the notification itself there is a mention that the reservation in respect of differently abled persons is governed by G.O.Ms.No.87 dated 17.7.2008. It is further stated that the 3% reservation will be ensured by each Appointing Authority by appointing one individual belonging to differently abled category in each of the 6 blocks of 200 point communal roster. It is further stated in the counter that the entire notification is given for the Vertical Reservation i.e., for communities, whereas the differently abled persons comes under Horizontal Reservation, hence, the petitioner will be accommodated if he comes on merit and will be absorbed under his respective communal quota. It is further stated that the State Government is giving utmost importance for providing employment opportunities to the differently abled persons. It is also submitted that the impugned notification is crystal clear about the reservation meant for differently abled persons and facilitates them to apply for the same as per the existing rules, and there is no arbitrariness on the part of the State Government, and hence, the impugned notification does not violate the fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India. The obligation of filling up of the vacancies as per 3% reservation will be carried out by the Appointing Authority at the time of appointment  by appointing one individual belonging to differently abled category in each of the 6 blocks of 200 point Communal Roaster.
29. The Registrar General, High Court, Madras, in her counter affidavit filed in W.P.(MD)No.9119 of 2010 reiterated the stand taken by the State Government. It is stated that the Government of Tamil Nadu in G.O.Ms.No.87 dated 17.07.2008 issued orders to adhere to the system of 200 point roaster dividing into 6 classifications granting an equal ratio of 1:1:1 to the disabled category i.e., Blind, Deaf and Orthopaedically challenged as far as possible, and to select differently abled persons among the 33 vacant posts in each division, and follow the method of making selection against their respective community in the communal roaster. It is further stated that inner rotation for all eligible categories including the differently abled persons are provided in the 200 point roaster, which is going to be adopted for the present selection on the basis of G.O.Ms.No.87 dated 17.07.2008. It is further stated that though the nature of duties and responsibilities attributed to the post of District Judge (Entry Level) required persons free from certain disabilities like blindness, total deafness, etc., so as to discharge his official duties, every possible steps have been taken to give equal opportunities to the eligible disabled persons, and hence, the operation of the relevant Governmental Order viz., G.O.Ms.No.87 dated 17.07.2008 in respect of differently  abled persons in the present selection process was notified in the impugned notification itself. Therefore, it is submitted that the impugned notification is transparent and strictly adhering to the rules of reservation in force.
30. After hearing the learned counsel appearing for the parties, we are of the view that the stand taken by the respondents in their respective counter affidavit is fully justified inasmuch as the system of 200 point roaster dividing into 6 classifications granting an equal ratio of 1:1:1 to the disabled category has been followed. It has been categorically stated that the obligation of filling up of vacancies as per 3% reservation would be carried out by the Appointing Authority at the time of appointment as per the roaster. In that view of the matter, we find that the impugned notification is transparent and is strictly adhering to the rules of reservation in force. Hence, the contention made by the petitioners in these two writ petitions are misconceived and devoid of any substance.   We, therefore, do not find any merit in this writ petition also.
W.P.No.15566 of 2010
  31. In this case the impugned notification has been challenged only on the ground that the maximum marks allotted to the written examination and the viva voce shall not be 75% and 25% respectively. Learned counsel for the petitioner contended that apart from 100% marks, the length of Bar experience is fixed as a criteria for short listing candidates for viva voce without any explanation as to the manner in which it is proposed to be done, which is illegal and unconstitutional. According to the learned counsel, the marks to be allotted to the viva voce shall not in any case exceed 12.5% of the total marks. In this connection, the learned counsel for the petitioner relied upon a decision of the Supreme Court in Mohinder Sen Garg Vs. State of Punjab reported in (1991) 1 SCC 662. In this context, first we would like to refer to Annexure  I under Rule  5 of the Tamil Nadu State Judicial (Cadre and Recruitment) Rules, 2007, which reads as follows:-
The selection shall be made based on the results of written examination and viva voce i.e., the selection will be made on the basis of the total marks obtained by the candidates in the written examination and viva voce taken together subject to the rule of reservation of appointment. The maximum marks allotted for the written examination and viva voce shall be 75% and 25% respectively.
32. The contention of the learned counsel for the petitioner that the marks fixed for the viva voce shall not exceed 12.5% cannot be accepted in view of the recent decision of the Supreme Court rendered in the case of Manish Kumar Shahi Vs. State of Bihar reported in 2010(6) SCALE 166. In that case, an advertisement was issued by the Bihar Public Service Commission for appointment of Civil Judges (Junior Division). As against the 850 marks prescribed for the written test 200 marks was allotted for viva voce. The said allotment of 200 marks for the viva voce was challenged by a candidate and ultimately the matter went up to the Supreme Court. The question that fell for the consideration of the Supreme Court was whether the marks prescribed for viva voce test/interview are excessive. The Supreme Court, after considering the various decisions including the decision rendered in Mohinder Sen Garg Vs. State of Punjab, (1991) 1 SCC 662 observed  that 
6. Shri. Jayant Bhushan, learned Senior Counsel argued that the High Court committed a serious error in denying relief to the petitioner by invoking the principle of estoppel/waiver ignoring that he had challenged the constitutionality of the rule by which excessive marks have been prescribed for viva voce test and also questioned the selection made by the Commission on the ground of violation of his fundamental right to equality guaranteed under Articles 14 and 16 of the Constitution. Learned counsel emphasized that the rule of estoppel, waiver and acquiescence cannot be applied in the cases involving violation of the rights guaranteed under Part III of the Constitution. He then submitted that the marks prescribed for viva voce test are highly excessive and contrary to the law laid down by this Court in Ashok Kumar Yadav Vs. State of Haryana, (1985) 4 SCC 417.

33. Their Lordships further observed that 
9. The question whether the marks prescribed for viva voce test/interview are excessive and selection made in accordance with the criteria like the one specified in Rule 14 read with Appendix  C and para (vi) of the advertisement issued by the Commission has been considered by this Court in several cases including those upon which reliance has been placed by learned counsel for the petitioner. Although, no straightjacket formula has been judicially evolved for determining whether the prescription of particular percentage of marks for viva voce test/interview introduces an element of arbitrariness in the process of selection or gives unbridled power to the recruiting authority/agency to select less meritorious candidates, by and large, the courts have not found any Constitutional infirmity in prescribing of higher percentage of marks for viva voce test/interview for recruitment to judicial services, administrative services and the like.
34. The next ground of challenge to the notification is that no syllabi has been prescribed for the said examination, which is contrary to all canons of reasonableness. It appears from paragraph  7 of the impugned notification that the subjects and the marks had been categorically mentioned therein. For better appreciation paragraph  7 of the impugned notification is quoted herein below:-
7. The written examination will be of 3 hours duration involving Law Paper Part  I (Civil), Law Paper Part  II (Criminal) and Law Paper Part  III (General) carrying 25 marks each (75 marks total) and 25 marks is ear-marked for viva-voce.
The Question Papers on Law Paper Part  I, II & III will be set in English as well as in Tamil. The candidates shall answer either in English or in Tamil/ but not in both.
The written examination will precede the viva-voce examination. As to short listing the candidates, their length of practice at the bar and the marks obtained by them in the written examination will be considered and such short listed candidates alone will be called for viva-voce examination.
 
35. Besides the above, all persons, who aspire to become a District Judge, are supposed to have knowledge of civil, criminal and other laws and must have put in 7 years standing in the Bar as an advocate. It has rightly been contended by the respondents that the post of District Judge is a coveted one having multiple responsibilities both on the judicial side and on the administrative side, and therefore, the candidates must have a good knowledge in civil, criminal and other laws and also basic knowledge in general law. In our considered opinion the impugned notification does not suffer from any error on account of non-furnishing of the syllabi.   Hence, the challenge made by the petitioner on this ground cannot be sustained.
W.P.No.18451 of 2010
36. In this writ petition, the petitioner seeks a declaration that the Rules of Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007 as unconstitutional, and consequently the impugned notification issued by the respondent for appointment to the post of District Judges (Entry Level) as also ultra vires and unconstitutional. It is stated that the candidates in the subordinate judicial service as Magistrates, Sub Judges and District Munsifs, who have put in 7 years of practice before their appointment in such service, can also be made eligible to appear for the examination for the recruitment of District Judges as in the case of Assistant Public Prosecutors Grade-I and Grade-II.  According to the petitioner therein, the Assistant Public Prosecutors Grade  I and Grade II are employees of the State and they are not pleaders. The respondents having made eligible the Assistant Public Prosecutors Grade  I and Grade  II, it is wholly unjustifiable to exclude the Magistrates, District Munsifs and Sub Judges to appear for the examination, as they are also government servants, and they must also be given a chance for their career advancement based on merit.
37. While discussion the point raised by other writ petitioners with regard to eligibility of Addl. Public Prosecutors to appear in the examination, we have discussed at length the provision of Art. 233 of the Constitution of India and referring to various decisions of the Supreme Court held that the candidates holding the post in the Subordinate Judicial Service are not eligible to appear in examination and not eligible for appointment to the post of District Judge (Entry Level).  In that view of the matter, the rule of the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules, 2007, cannot be held to be unconstitutional.  Hence, this writ petition has also no merit and is devoid of any substance.
38. In the result, all these writ petitions are dismissed.  Consequently, connected miscellaneous petitions are closed.  However, there shall be no order as to costs.
39. Since the post of District Judges are lying vacant and there are urgent need of District Judges to be posted in different places, we direct the concerned respondents to notify the date and venue of the written examination within a period of six weeks from today.












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