Dr. CHAUHAN, J. - (1.) IN first two writ petitions, selection of respondents No. 3 to 12 (in writ petition No. 1704/1988), who have been appointed to the cadre of Rajasthan Higher Judicial Services vide order dated 20.4.1998 in pursuance of the advertisement dated 21.12.1996 and recommendations of the Rajasthan High Court dated 19.12.1997, has been questioned by challenging the validity of rules 3(b), 8(2) and 15(2) of the Rajasthan Higher Judicial Service Rules, 1969 (hereinafter referred as the "RHJS Rules, 1969") on various grounds and in Writ Petition No. 2179/1998, the selection has been challenged on the ground of being made in flagrant violation of the said Rules. A Division Bench referred the cases to a Larger Bench framing various issues.
(2.) IN Writ Petition No. 1704/1998, Ganga Ram Moolchandani Versus High Court of Judicature for Rajasthan and others, the facts and circumstances giving rise to this case are that the High Court issued an advertisement dated 21.12,1996 inviting applications for eleven posts in the cadre of R.H.J.S. to be filled-up in terms of the R.H.J.S. Rules, 1969. Petitioner, who is a practising Advocate in the District Court, Bareilly, a Court subordinate to the High Court of Judicature at Allahabad, applied in response to the said advertisement considering himself to be eligible though the said advertisement specifically provided that a candidate must have practised for seven years in Rajasthan High Court or courts subordinate thereto. He submitted his application through the District Judge, Bareilly. His application was processed by the Rajasthan High Court and he was called for interview. After interviewing, the Selection Committee found him meritorious and placed his name in the proposed select list. However, the Full Court, in its meeting held on l9th December, 1997, did not recommend the name of the petitioner as it was found to be dehors the Rules not being found eligible for the reason that he had not practised for seven years in the High Court of Rajasthan or the Courts subordinate thereto. Hence this writ petition challenging the constitutional validity of the impugned Rules. In Writ Petition No. 1010/1998, Budh Deo Yadav Versus State of Rajasthan and others, the Petitioner had applied in response to the said advertisement dated 21.12.96 but he was not called for interview and his candidature was not considered on the ground that he was a full-time-salaried Deputy District Attorney in the State of Haryana. He has challenged the validity of the said Rules on the ground that it cannot be restricted to the persons practising in Rajasthan High Court or the Courts subordinate thereto. Moreover, the petitioner has to be considered as an 'Advocate' taking into account the nature of service he is rendering to the State of Haryana. The third Writ Petition No. 2179/1998 has been filed by the petitioner, who is a practising Advocate in the Courts at Deeg (district Bharatpur) which is a Court subordinate to the Rajasthan High Court. He had applied for the post in response to the said advertisement. He was interviewed. The Selection Committee did not find him suitable for appointment as Additional District & Sessions Judge in RHJS Cadre. His grievance is that two candidates, who had duly been selected and appo- inted, viz., Shri Seeta Ram and Shri Ram Singh Meena (though not impleaded as respondents) had been selected by allowing relaxation in the minimum marks fixed by the Selection Committee and as the Selection Committee was not competent to relax the minimum marks, their appointments are void, being dehors the Rules, and prayed that the entire selection process be quashed as the same stood vitiated. All the three writ petitioners were heard together by the Division Bench of this Court. The Division Bench judgment of this Court in Daulat Raj Singhvi Versus State of Rajasthan, (1) and a Full Bench judgment approving the said judgment in Daulat Raj Singhvi in the case of Muni Lal Garg Versus State of Rajasthan,(2) where- in the validity of rules 8 and 15 had been up-held, were considered in the light of the judgment of the Supreme Court in Panduranga Rao Versus Andhra Pradesh Public Service Commission, (3) The Division Bench raised doubt regarding the correctness of the Division Bench and Full Bench judgments of this Court referred to above and referred the matter to Five Judges, mainly on three questions: (i) whe- ther the provisions of rules 8 and 15 of the Rules are constitutionally valid; (ii) whether the Full-time-salaried Deputy District Attorney of the State of Haryana, may be deemed to be a `practising Advocate' during the period of such appointment; and (iii) if the Rules are valid, whether there has been violation of the Rules in the recruitment process. Having heard the parties, it was observed that instead of answering the question referred to the Bench, the writ petitions be finally decided alongwith the question of law referred to. Hence they were heard on the question referred to and also on other submissions made.
(3.) THE R.H.J.S. Rules, 1969 have been framed by the Governor of Rajasthan in consultation with the High Court of Judicature for Rajasthan in exercise of powers conferred under Article 233 and the proviso to Article 309 of the Constitution of India. Rule 3(b) defines the 'Court' as the High Court of Judicature for Rajasthan. Rule 8 provides for 'Sources of Recruitment' and Clause (2) of the said rule reads as under- "8(2). -By direct recruitment from the Advocates who have practised in the Court or Courts subordinate thereto for a period of not less than seven years." Rule 15(2) provides that a candidate must be an Advocate who has practised in the Court or Courts subordinate thereto for a period of not less than seven years. Rule 19 provides for channel of submission of the applications and requires that applications by the eligible candidates be submitted to the High Court through the concerned District Judges. Rule 20 provides for scrutiny of the applications received under rule 19. Sub-rule (2) of rule 20 provides for the interview of the eligible candidates by a Committee of the Judges of the High Court. Sub-rules (3) and (4) of rule 20 reads as under- "(3) The recommendation of the Committee shall be placed before the Full Court with relevant record and the Court shall make the final selection of the candidate or candidates suitable for appointment to the Service in order of merit." "(4) Notwithstanding hereinbefore contended, if the number of persons selected in accordance with the above mentioned provision is less than the number of posts required to be filled by direct recruit- ment, the Court may select persons to fill the remaining vacancies even from amongst those Advocates who have not applied under rule 19 but fulfil the qualification laid down in Clause (2) of rule 8 and are considered to be fit for appointment to the Service." Rule 21 provides that the Court shall prepare the list of all the candidates whom it considered suitable for appointment to the Service, arranging their names in the order in which they are to be appointed, and shall recommend their names to His Excellency the Governor for appointment to the Service, having regard to the provisions of rule 9. ;