Several competent young advocates who have been ambitiously sustaining Court practice with meager income are now required to wait for several more years to become District Judges despite having the required determination and grit.
NIRMALKUMAR MOHANDOSS
Image for representative purpose only. Courtesy: Young Advocates Association, Chennai
It was a talking point in the legal fraternity for some time that no candidate passed preliminary examinations conducted recently for direct recruitment of District Judges both in Tamil Nadu and Puducherry. While the notification with respect to Puducherry Judicial service invited application for one vacancy, in Tamil Nadu it was for 32 vacancies. While so many issues are discussed with respect to the judicial service exams, one issue that I would like to raise is barring several competent and ambitious young advocates from attending them by prescribing minimum age qualification under Judicial service recruitment rules.
Article 233(2) of the Constitution of India which provides for ‘APPOINTMENT OF DISTRICT JUDGES’ reads thus:
‘A person not already in the service of the Union or 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.’
The Puducherry Judicial Service (Cadre and Recruitment) Rules, 2008 and the Tamil Nadu Judicial Service (Cadre and Recruitment) Rules, 2007 provide, among other things, for the manner of appointment as District Judges.
The relevant portion of Entry (3) in the Table provided under Rule 8 of the Puducherry Rules of 2008 provides for method of appointment and qualification to District Judge (entry level) and it reads thus:
‘25 percent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and vivavoce test prescribed and conducted by the High Court in accordance with the rules prescribed in Annexure – I.’
Entry (3) in the Schedule to Rules 5 of the Tamil Nadu Judicial Service (Cadre and recruitment) Rules, 2007 is an identical provision. The above rules also provide for the manner of inviting applications from eligible candidates and conduct of written examinations and viva voce for the direct recruitment of District Judges (entry level).
A combined reading of Article 233 of the Constitution of India and the relevant provisions of the Puducherry Judicial Service (Cadre and Recruitment) Rules, 2008 [also the Tamil Nadu Rules of 2007] makes it crystal clear that any person who has been for not less than seven years an advocate was eligible to be appointed as District Judge (Entry level) by direct recruitment if he/she otherwise qualifies in the written examination and viva voce conducted towards the same.
It should be noted that in 2016 vide G.O. Ms. No. 16/2016/LD dated 03.08.2016 and in 2017 vide G.O. Ms 877, Home (Courts – I) dated 24.11.2017, the Governments of Puducherry and Tamil Nadu respectively amended the relevant Judicial Service (Cadre and Recruitment) Rules, by prescribing attainment of the age of 35 years for a person to be eligible for appointment as a District Judge (Entry level) by direct recruitment by providing that:
“… Must have attained the age of 35 years and 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 in which the notification for recruitment to the post was issued”
According to the notifications inviting application for direct recruitment of District Judges, the applicants required several qualifications like possession of 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/Bar Council of India or any other equivalent qualification; enrollment as an advocate in the Bar Council of Tamil Nadu or in the Bar Council of any other State; practice as an advocate; and such practice must have been for a period of not less than seven years as on such date.
The legal ramifications of the above amendments requiring an additional qualification of attaining 35 years are many.
For instance, the amendment creates an intelligible differentia by classifying advocates with seven or more years of practice into those who have attained the age of 35 years and those who have not attained the age of 35 years without any rationale thus violating the right to equality enshrined under Article 14 of the Constitution of India, in so far as they treat advocates with equal years of practice differently based on the attainment of 35 years of age alone.
Consider ‘A’ enrolling as an advocate in June 2012 after graduating in law at 22 years of age [after completing his 10, +2 +(3+3)/5 without any break] and ‘B’ enrolling as an advocate during the same period at 29 years of age due to break in his/her school/college education or profession, both of them undergo almost the same level of training, Court practice, building of clientele, learning of law & Court craft over the subsequent years. In 2020, upon completing 7 years of practice as advocates, though both have almost the same level of practice, learning and experience at the Bar, ‘B’ will be eligible for appointment of District Judge while ‘A’ will still not be, merely because he/she has not attained 35 years of age.
Interestingly, most advocates who now enroll at the age of 22, particularly after introduction of Five Years integrated course, will not be eligible for appointment as District Judges with even 12 years of practice though their contemporaries with much lesser years of practice will be so eligible only on attainment of 35 years of age.
Moreover, there is also ‘manifest arbitrariness’ in prescribing 35 years as ‘minimum age’ for appointment as District Judge (entry level) by direct recruitment as there is no rationale behind such prescription. There is also no study, both scientific and social or discussion or deliberation in fixing such age.
Another important point to note is that advocates with not less than 10 years of practice who are eligible for appointment as a Judge of the High Court as prescribed under Article 217 of the Constitution of India or as a Judge of the Supreme Court under Article 124 shall still not be qualified for appointment as a District Judge under Article 233 if the amendments are not kept in abeyance.
Having otherwise qualified with a valid degree in law and not less than seven years of practice, while taking into account an irrelevant consideration - age, many advocates will still not even be eligible for direct recruitment as district Judges. Several young advocates who have been ambitiously sustaining Court practice with meager income are now required to wait for several more years despite having the determination and grit to get into judiciary. Moreover, since very few States prescribe such minimum age, it does not provide for level playing field for judicial officers for elevation to Supreme Court from High Courts later in their career.
Further, the framers of the Constitution of India, who have prescribed minimum age qualification for appointment of the President of India, Vice President of India; for membership of Parliament, State Legislatures and to various other Constitutional offices, have deliberately avoided such minimum age prescription for appointment of District Judges under Article 233, High Court and Supreme Court Judges under Articles 217 and 124 of the Constitution respectively as experience and not age is the factor relevant to determine competence, as they have already covered the minimum age criterion by prescribing a minimum years of practice for such appointments. Raising such minimum age by any other law would not have been conceived by the drafters of the Constitution.
Recently, in W.P. No. 49 of 2020 [S. Murugan Vs State of Tamil Nadu & Ors.,], the above amendment to the Tamil Nadu Rules of 2007 was challenged before the Madras High Court. However, the Court dismissed the same at admission stage itself since it was of the opinion that the Supreme Court has already covered the issue in Hirandra Kumar Vs High Court of Judicature at Allahabad &Ors., [2019 (2) Allahabad Weekly cases 1507 SC].
However it is my humble opinion with all due respect to the wisdom of the Court that Hirandra Kumar case is not applicable at this context because prescription of maximum age was under challenge before Apex Court and hence no legal points or grounds challenging prescription of minimum age of 35 years was submitted to or considered by the Court while concluding that ‘Governments have discretion to prescribe age limit’. While maximum age prescription deals with retirement, cadre strength etc, minimum age restrictions have completely different ramifications and questions of Fundamental Rights as pointed out above. Though Governments might have discretion to prescribe age restrictions according to the Apex Court, exercise of such discretionary powers should always be within the confines of the Constitution and hence, prescribing minimum age of 35 is still subject to judicial review.
The author, our founder is available for comments at nirmalkumar.m.law@gmail.com
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