Singh, J. - (1.) The Orissa Judicial Services Association has filed this petition under Article 32 of the Constitution challenging the constitutional validity of Rule 7 of the Orissa Superior Judicial Service Rules, 1963 and for quashing Notification dated 24-2-1967 inviting applications from members of the Bar for direct recruitment to the Orissa Superior Judicial Service.
(2.) The petitioner Association, which represents the members of the Judicial Service of the State of Orissa has raised grievance that the Subordinate Judicial Service in the State continues to be in a pitiable condition and most of the judicial officers have been stagnating for many years for lack of promotional avenues. Though the members of the Subordinate Judicial Service have avenues of promotion to the Superior Judicial Service but since the Orissa Superior Judicial Services Rules, 1963 (hereinafter referred to as 'the Rules') provide for direct recruitment to the Superior Judicial Service from members of the Bar, it adversely affects the chances of promotion of the members of the Subordinate Judicial Service resulting into stagnation and frustration. Their grievance is that there' should be no direct recruitment to the Superior Judicial Service and in that view they have challenged the Notification dated 24-2-1987 issued by the High Court inviting /applications from the members of the Bar for direct recruitment to the Superior Judicial Service. The petitioner has further challenged. validity of Rule 7 which confers power on the Government to decide as to which vacancy shall be filled up by direct recruitment or promotion. It is urged that Rule 7 is violative of Articles 14, 16 and 233 (2) of the Constitution of India. The State Govt. as well as the High Court both have filed counter-affidavit contesting the petition.
(3.) After hearing learned counsel for the parties, we do not find any merit in the petition. The petitioner's grievance that direct recruitment of the members of the bar is not permissible under the law and that the State Government and the High Court are acting contrary to law in making direct recruitments to the Superior Judicial Service is devoid of any merit. Article 233 provides for appointment of District Judges. Clause (1) lays down that appointment of persons to be District Judges in any State shall be made by the Governor of the State in consultation with the High Court and Clause (2) of the Article provides for appointment of a, person, not; already in the service of the Union of the State as District Judge, provided, he has been for not less than seven years as an Advocate or a pleader and is recommended for appointment by the High Court. These two clauses of Article 233 contemplate recruitment to the post of District Judge included within Superior Judicial Service of the State by promotion from the Subordinate Judicial Service as well as by direct recruitment from the members of the Bar. These recruitments are made by the Governor of the State in consultation and on recommendation of the Court. The Governor of Orissa has in consultation with the High Court, in exercise of powers under Article 309 read with Article 233 of the Constitution, framed the Orissa Superior Judicial Service Rules, 1963 regulating the recruitment and conditions of service of persons appointed to the Orissa Superior Judicial Service. Rule 5 provides for recruitment to the service by two methods, namely, by direct recruitment and by promotion of officers from Junior Branch of the Service. Rule 7 provides that when a vacancy occurs in the Senior Branch of the Service, Government shall decide in consultation with the High Court whether the same may be filled by direct recruitment or promotion. Rule 8 provides that direct recruitment to the Senior Branch of Service shall be made from the Bar. Rule 9 provides that whenever vacancy in the Senior Branch of Service is decided to be filled to up promotion the Government shall fill up the same on the recommendation of the High Court. It is not necessary to refer to other Rules for the purposes of the present case. It is apparent that the Constitution as well as the statutory rules framed under Article 309 provide for recruitment to the Senior Branch of Service or direct recruitment from the members of the Bar. The constitutional mandate cannot be challenged merely because it may to certain extent Adversely affect the chances of promotion of the Junior Branch of Judicial Service.;