News By/Courtesy: Ojaswi Gupta | 01 Sep 2019 10:47am IST

HIGHLIGHTS

  • All appointments that are to made can only be made strictly in accordance with the order and not otherwise.
  • The petitioner contested that the validity of Rule 3 (2) (f) is ultra-vires to Article 233(2) of the Constitution of India.
  • The aforementioned Rule voilates Article 14 and Article 16(I) of the Constitution of India.

A fresh petition was filed before Supreme Court challenging the constitutional validity of Rule 3(2) (f) of the Kerala State Higher Judicial Service Special Rules, 1961 along with the eligibility of judges from the subordinate judiciary to be appointed as district judge based on their proficiency in the bar.

A backdrop of the present facts suggests a petition titles “Jubiya A. & Ors. v. High Court of Kerala & Ors.” was filled through an Advocate Aljo K. Joseph, by five judicial officers of Kerala Judicial Services. It challenges the constitutional validity of Rule 3 (2) (f) Kerala State Higher Judicial Service Special Rules, 1961, by which only practicing advocates with a practice of at least 7 years were eligible for the appointment to the post of District and Session judges. Further, it describes that in-service candidates were barred from such appointment.

The Kerala High Court had informed vacancies on 21.11.20117 for the post of District and Session judge. A practicing advocate with a practice of at least 7 years shall be eligible to undertake the examination for such appointment whereas in-service candidates were proscribed from such appointment.

Through registrar of the Kerala High Court, the petitioners who were judicial officer received permission to appear in the aforementioned examination.

The Kerala High Court, on the petition moved by certain advocate candidates, after the deceleration of results of the preliminary examination, directed the registrar to include addition candidate from practicing advocates who are equal in number to the judicial officers (2 stars and 3 stars) to appear for the main examination.

A list of selected candidates was published on 07.06.2019, after the main examination and viva voce, wherein the petitioner was selected. Nonetheless, a new list of the selected candidate was published on 08.06.2019 wherein, the names of the petitioners were not present and were replaced by names of some candidates whose names were not present in the previous list published on 07.06.2019.

Aggrieved by the exclusion, petitioners, submitted a representation to the High Court. To which The High Court replied while informing petitioner that the representation was rejected and that the claim of the applicant was untenable taken in consideration the order of the Supreme Court of May 10, 2019, in the case of Dheeraj Mor v. High Court of Delhi. The petitioner claimed that the aforementioned case has been wrongly interpreted. The court, in this case, observes that “practicing advocate who had been found selected for appointment, could be appointed subject to the outcome of the pending proceeding. However, the advocates how haven’t passed the preliminary examination and were not eligible to be selected were listed in the final merit list.

The petitioner contested that the validity of Rule 3 (2) (f) is ultra-vires to Article 233 (2) of the Constitution of India. The petitioner also submitted that even after being qualified to be promoted to the position of the District or Session judge in due course, they had been denied of their right by the way of competitive exams. They further argued that it violates Article 14 of the constitution as the discrimination between an advocate and in-service judge is not based on intelligible differentia. It also violated their right to equal opportunity under Article 16(I) of the Constitution.

The Supreme Court while considering the writ petition has directed that no new appointments be made from now-onwards of the in-service candidate against quota reserved for Bar. All appointments that are to made can only be made strictly in accordance with the order and not otherwise, directed by the bench comprising of Mr. Justice Rohinton Fali Nariman and Mr. Justice Surya Kant.

Section Editor: Shrishti Mittal | 02 Sep 2019 13:13pm IST


Tags : #SC #HIGHCOURTS #voilationofconstitution #constitutionofindia #righttoequalapportunity

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