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1980 DIGILAW 117 (GUJ)

VIJAYCHANDRA VRAJLAL AMBANI v. STATE

1980-06-17

A.N.SURTI, M.P.THAKKAR

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A. N. SURTI, M. P. THAKKAR, J. ( 1 ) A question of considerable importance is raised in the present petition affecting the selection and/or the appointment of the Registrar of the City Civil and Sessions Court Ahmedabad. ( 2 ) IN order to appreciate the point canvassed in the petition a few relevant facts may be stated. ( 3 ) THE post of the Registrar of the City Civil and Sessions Court Ahmedabad fell vacant on July 1 1979. Prior to that the Gujarat Public Service Commission invited the applications from the suitable candidates by its advertisement dated April 17 1979 and the same was published in the Gujarat Government Gazette dated May 3 1979 Petitioner No. 1 as well as respondent No. 3 had applied for the said post. On July 23 1979 petitioner No. 1 and respondent No. 3 were interviewed by the Gujarat Public Service Commission at Ahmedabad and after their interviews the Secretary of the Gujarat Public Service Commission Ahmedabad put up a notice that respondent No. 3 Shri Arvindray Janakray Dave was selected by the Gujarat Public Service Commission for the post of Registrar City Civil Court Ahmedabad. It is this selection which was made by the Gujarat Public Service Commission was a subject matter of a serious challenge before us in course of the hearing of the petition. ( 4 ) PETITIONER No. 1 is holding degrees of B. A. of Bombay University and L. L. B. of Gujarat. University. At the relevant time he was holding the post of Deputy Registrar City Civil and Sessions Court Ahmedabad. ( 5 ) THE State of Gujarat as wall as the Gujarat Public Service Commission are also impleaded as parties respondents before us. At the relevant time respondent No. 3 Shri Arvindray Janakray Dave was holding the Post of Registrar Metropolitan Magistrates Court Ahmedabad and as stated above was selected for the post of the Registrar City Civil and Sessions Court Ahmedabad. ( 6 ) THE grievance on behalf of the petitioner was that the said selection of respondent No. 3 is in violation of the Ahmedabad City Courts (Classification of and Recruitment to posts of Registrars and Deputy Registrars) Rules 1961 According to petitioners the said Rules are having statutory force and the said selection of respondent No. 3 is in violation of the said Rules having statutory force. ( 7 ) RULE 3 of the said Rules provides as follows :-RECRUITMENT to posts of Registrar. Ahmedabad City Civil Court. Appointment to the post of the Registrar of the Ahmedabad City Court shall be made either; (1) by promotion of a member of the establishment of the City Civil and Sessions Court Ahmedabad or (2) by transfer of a member of the staff attached to the High Court of Gujarat or a member of the Junior Branch of the Subordinate Judicial Service or (3) by nomination. ( 8 ) RULE 5 of the said Rules is ill the following terms :-5 Qualifications for appointment by nomination. To be eligible for appointment as Registrar by nomination a candidate must be a person in who being a member of the establishment of the City Civil and Sessions Court Ahmedabad or a member of the staff attached to the High Court of Gujarat or a member of the Junior Branch of the Subordinate Judicial Service has the qualifications required for appointment by promotions or transfer:- (ii) who on the date of appointment is not more than 45 years of age and. . . . . 9 At this stage we may also usefully refer to Rule 6 which provides for recruitment to post of Deputy Registrar Ahmedabad City Civil Court. It provides appointment to the post of Deputy Registrar of the Ahmedabad City Civil Court shall be made either:- (1) by promotion of a member of the establishment of the City Civil and Sessions Court Ahmedabad or (2) by transfer of a member of the staff attached to the High Court of Gujarat or any court subordinate thereto or (3) by nomination ( 9 ) HAVING regard to the grievance made by the petitioners it is not necessary for us to refer to the rest of the aforesaid Rules. Suffice it to say that the appointment to the post of the Registrar of the City Civil Court; Ahmedabad can only be made by promotion of the member of the establishment of the City Civil and Sessions Court Ahmedabad or by transferring a member of the staff attached to the High Court of Gujarat or if a person is a member to the junior branch of the subordinate judicial service. ( 10 ) IN the present case at the relevant time it is clear to us that respondent No. 3 was not a member of the establishment of the City Civil and Sessions Court Ahmedabad It is equally clear to us that respondent No. 3 was not selected for the aforesaid post in pursuance to his transfer as provided by sub-rule (2) of Rule 3 of the aforesaid Rules. It may be equally emphasised that respondent No. 3 was never a member of the staff attached to the High Court of Gujarat. ( 11 ) UNDER the aforesaid Circumstances the grievance other petitioners was that as respondent No. 3 was never a member of the junior branch of the subordinate judicial service it was patently illegal for the Gujarat Public Service Commission to select him for the said post and it would be equally illegal for the State to appoint him as the Registrar of the City Civil and Sessions Court Ahmedabad. ( 12 ) IT is may be significantly noticed that Rule 5 provides inter alia that the Deputy Registrar Ahmedabad city Civil Court can also be appointed by transfer of. a member of the staff attached to the High Court of Gujarat or any court subordinate thereto. In. this view of the matter the aforesaid Rules clearly indicate that before a person can be appointed as the Registrar of the City Civil Court he should be necessarily a member of the establishment of the City Civil and Session Court Ahmedabad or he should be a member of the staff attached to the High Court of Gujarat or he should be a member of the junior branch of the subordinate judicial service. As stated above in the instant case the record of the present petition clearly reveals that respondent No. 3 was never a member of the establishment of the City Civil and Sessions Court Ahmedabad at the relevant time. The record is also clear to come to a conclusion that he was not appointed as the Registrar of the City Civil Court on transfer as provided by sub-rule (2) of Rule 3 of the aforesaid Rules. ( 13 ) MR. The record is also clear to come to a conclusion that he was not appointed as the Registrar of the City Civil Court on transfer as provided by sub-rule (2) of Rule 3 of the aforesaid Rules. ( 13 ) MR. Mehta the learned advocate for the petitioners invited our attention to the Gujarat Judicial Service Recruitment Rules 1961 as amended from time to time vide Annexure Y. Rule 2 (e) defines service:- (A) service means the Gujarat Judicial services:- 3 Constitution of Service (1) The service Shall consist of the Branches namely:- (d) Junior Branch and (b) Senior Branch. (2) The Junior Branch shall Consist of the following two Classes namely:- (a) Class I comprising. (i) Civil Judge (Senior Division); and (ii) Judges of the Small Causes Court at Ahmedabad and City Magistrates; (b) Class II; comprising Civil Judges (Junior Division) and Judicial Magistrates of the first class. (3) The Senior Branch shall consist of District Judges the Principal Judge and the Judges of the Ahmedabad City Civil Court the Chief Judge of the Shall Causes Court Ahmedabad the Chief Magistrate the Additional Chief Magistrate Ahmedabad and the Assistant Judge. THE rest of the aforesaid 1961 Rules need not be set out for the disposal of the present petition. ( 14 ) IT was urged by Mr. Mehta the learned advocate for the petitiooners that in the context of the Gujarat Judicial Service Recruitment Rules 1961 we must read the Ahmedabad City Courts (Classification of and Recruitment to posts of Registrars and Deputy Registrars) Rules 1961 He strongly urged that in the context of the Gujarat Judicial Service Recruitment Rules 1961 if we read the Ahmedabad City Courts (Classification of and Recruitment to posts of Registrars and Deputy Registrars) Rules 1961 we must necessarily reach to one conclusion that unless a person is a member of the Junior Branch of the Subordinate judicial service he can never be selected and appointed as the Registrar of the City Civil and Sessions Court Ahmedabad. Mr. Mehta also urged that in the instant case respondent No. 3 at the relevant time was never holding the post of a Civil Judge (Senior Division) or the post of the Judge of the Small Causes Court at Ahmedabad or the City Magistrates or the post of a Civil Judge (Junior Division) and Judicial Magistrates of the first class. Under the circumstances Mr. Under the circumstances Mr. Mehta urged before us that it was in clear and flagrant violation of the statutory rules viz. the Ahmedabad City Courts (Classification of and Recruitment to posts of Registrars and Deputy Registrars) Rules 1961 that respondent No. 3 was selected for the post of the Registrar of the City Civil and Sessions Court Ahmedabad. It may be emphasised once again at this stage that at the relevant lime the third respondent was holding the post of Registrar Metropolitan Magistrates Courts at Ahmedabad. In view of what has been stated Mr. Mehtas submission before us was that the selection of respondent No. 3 for the post of Registrar City Civil and Sessions Court at Ahmedabad is patently illegal and was made in flagrant violation of the statutory rules. ( 15 ) MR. P. M. Raval the learned advocate appearing for respondent No. 3 vehemently resisted the petition. In substance the submission of Mr. Raval was that respondent No. 3 was a member of the subordinate Judicial service and as such was legally entitled to be selected and appointed for the post of Registrar City Civil and Sessions Court Ahmedabad. ( 16 ) IN order to substantiate the point Mr. Raval invited our attention to the Bombay Civil Services (Classification and Recruitment Rules 1939 (vide Annexure I to the affidavit in reply filed by respondent No. 3 Mr. Raval invited our attention to the Appendix B annexed with the said rules. Appendix B to the said Rules provides inter alia as fallows:-SUBORDINATE Judicial Service. (i) Executive Branch Registrar of the Small Causes Courts Poona and Ahmedabad. (ii) Ministerial Branch Nazirs and Sheristedars Clerks of the Courts (III) Inferior Branch Registrar District Court Ahmednagar Stenographers and Clerks Bailiffs. Book binders. Chobdars Peons and Petty Officers Liftmen Hamals Filers. ( 17 ) THE submission of Mr. Raval was that from 1939 Rules it must be inevitably inferred that respondent No. 3 who was holding the post of the Registrar Metropolitan Magistrates Court Ahmedabad was a member of the subordinate judicial services as provided in Sub-rule (2) of Rule 3 of the Ahmedabad City Civil Courts (Classification of and Recruitment to posts of Registrars and Deputy Registrars) Rules 1961 This was the only submission urged by Mr. Raval in course of the hearing of the present petition. Raval in course of the hearing of the present petition. ( 18 ) NOW it may be stated at this stage that Appendix B which provides for subordinate judicial services in 1939 rules was deleted in the year 1957. For this limited purpose we had seen the Bombay Civil Services Classification and Recruitment Rules (vide Appendix D) which were published in the year 1957 (vide Bombay Government Gazethe Part IV A 1957 page 104 ). It may be significantly emphasised once again that Appendix B annexed with the aforesaid 1939 Rules was deleted in the year 1957 with the result the when the Gujarat Judicial Service Recruitment Rules 1961 were published on the statute book the concept of subordinate judicial service as mentioned in 1939 Rules never existed and was non est. In this view of the matter their is no tittle of merit or any substance in the aforesaid submission made by Mr. Raval that respondent No. 3 was a member of the subordinate judicial service when he was selected for the post of the Registrar of the City Civil and Sessions Court Ahmedabad. ( 19 ) AS a result of the aforesaid discussion we are convinced that the selection made by the Gujarat Public Service Commission in pursuance to their notice dated July 16 1979 (Annexure C to the petition) selscting respondent No. 3 as the Registrar of the City Civil Court is in flagrant violation of the Ahmedabad City Courts (Classification of and Recruitment to the post of Registrars and Deputy Registrars) Rules 1961 ( 20 ) NO other submission was made by Mr. Raval in course of the hearing of the present petition. . ( 21 ) AS a result of the aforesaid discussion the petition succeeds. The rule is made absolute. The selection made by the Gujarat Public Service Commission selecting respondent No. 3 for the post of Registrar City Civil and Sessions Court Ahmedabad is quashed and set aside; and it is declared that the said selection of respondent No. 3 as the Registrar of the City Civil and Sessions Court Ahmedabad is illegal bad in law and of no consequence. ( 22 ) ACCORDINGLY the petition succeeds and the rule is made absolute but having regard to the facts and circumstances of the case we make no order as to costs. Petition allowed. .