G.M.LODHA, J. - (1.) PETITIONER R.R.P. Bhatnagar has filed this writ petition praying that the proviso to Rule 9 of the Rajasthan Higher Judicial Service Rules be declared to be invalid and ultra vires of Article 236(b) of the Constitution of India. He has further prayed that the orders Annexures 2 and 3 dated 17 -12 -1975 appointing Shri S.D. Godara and Shri N.L. Chhangani as Additional District Judges and an order dated 13 -7 -1976 appointing Shri G.L. Acharya and Shri R.C. Sud as Addl. District Judges be set aside and quashed. A further prayer has been made that the respondents No. 1 and 2 State of Rajasthan and the High Court of Judicature for Rajasthan Jodhpur, be directed to consider the candidature of the petitioner along with other persons, of judicial service who are persons exclusively intended to fill the post of District Judge and lastly it has been prayed that a direction may be issued that in future all posts Additional District Judges and p strict Judges in the Rajasthan High for Judicial Service be filled by promotion from members of the Rajasthan Judicial Service who are persons exclusively intended to fall the pest of District Judge.
(2.) THIS writ petition has beer opposed by all the respondents. Mr. Bhatnagar who has argued this casein person, has made a brief submission to substantiate his writ petition, which is based on the interpretation to be given to Articles 233, 234 and 236 of the Constitution. He has invited my attention to Sub -clause (b) of Article 236 which is as under: 236(b) the expression 'judicial service' means a service consisting exclusively of persons intended to (sic) the pest of District Judge and other civil judicial posts inferior to the post of District Judge. Mr. Bhatnagar's contention is that so long as any member of judicial service is available for being promoted to the post of District Judge which includes Additional District Judge, no other persons from outside judicial service can be appointed by direct recruitment. According to him Clause (b) of Article 236 while using the word 'exclusively' in it expressly shows the intention of the Parliament to create a source of exclusive intendment of the members, of judicial service for promotion to the putt of District Judge including the Additional District Judge. In view of this, it is contended, that the proviso to Rule 9 which provides that after every three appointments by promotion, 4th person shall as tar as possible be appointed by direct recruitment, is invalid and ultra vires. It is submitted that the 4th person is available from judicial service, should be promoted and that process should continue till a situation arises where there is the member of judicial service available who is eligible for being promoted to the post of Addl. District Judge or District Judge as the case may be. That hearing so, it is argued that proportion 3 : 1 for recruitment of RHJS between the members of the judicial service and the direct recruits from Advocates is liable to be struck down being violative of Article 236(b) and Article 16 of the Constitution. Mr. J.S. Rastogi, learned Government Advocate and Mr. Singhvi learned Counsel for the respondents No. 3, 4, 5 and 6 have vehemently opposed this writ application. My attention has been invited to Sub -clause (2) of Article 233 which is as under: 133(2) - A person not already in the service of the Union or of the State shall only be eligible to be appointed as a District judge if he has been for not less than seven years on advocate or a pleader and is recommended by the High Court for appointment. It is contended that Sub -clause (2) of Article 233 expressly says that these Advocates who have put up seven years practice as an advocate or a pleader, and are recommended by the High Court for such appointment, can be appointed as District Judges by the Governor of State under Article 233(1). According to, Mr. Rastogi, there are two sources from which the Rajasthan Higher Judicial Service is formed one is of promotees from Rajasthan Judicial Service and the second one is advocates or pleaders having seven years standing. It is submitted that there is no express or implied intention to exclude the advocates and to make promotions from judicial service only as long as they are available as contended by Mr. Bhatnagar. The interpretation put by Mr. Bhatnaga to the word 'exclusively' in Article 256(b) is being challenged. Reference Was also made to Article 234 wherein it has been mentioned that appointment of persons other than District Judges to the judicial service of a State shall be made by the Governor of the Sate in accordance with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State Article 234 reads as under: 234. Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Mr. Singhvi appearing for the respondents No. 3 to 6 has raised further objection to the maintainability of the writ application on the ground of delay and also challenged the locus -standi of the petitioner to file this writ application.
(3.) I have bestowed my earnest consideration to the above rival contentions of the parties. It should be mentioned in the very beginning that the Rajasthan Higher Judicial Service Rules, 1969 have been framed under Article 231 and the proviso to Article 309 of the Constitution of India as expressly mentioned in the notification dated 17 -1 -1969 published in the Rajasthan Gazette (Extraodinary, Part IV -dated 21 -1 -69 Part III of these rules contained the principles and procedure of Recruitment and Promotion. The sources of recruitment are mentioned in Rule 8 which is as under: 8. Sources of recruitments -Recruitment to the service shall be made - (i) by promotion from amongst the members of the Rajasthan Judicial Service; or (ii) 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. ;