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1987 DIGILAW 554 (SC)

State of Maharashtra v. Arun Kumar Ganesh Rao

1987-04-29

S.NATARAJAN, SABYASACHI MUKHARJI

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ORDER : Sabyasachi Mukharji, J. :- This appeal by special leave arises out of the order and judgment delivered by the High Court of Bombay in Writ Petition No. 57 of 1986. Before the High Court the petition was by respondent in this appeal, and at material times a resident of Aurangabad. He had passed L.L.B. examination in 1978 from the Maharashtra University and was enrolled as an advocate with the Bar Council of Maharashtra on 17th February, 1979. Inasmuch as locus to maintain this petition is not under challenge, it is not necessary to deal in detail with his further qualifications as set out in the petition. He challenged the procedure and method evolved by the Maharashtra Public Service Commission for filling up 150 posts of Civil Judge (Judicial) and Judicial Magistrate (First Class). The petitioner stated that he was one of the applicant for the said post. Some of the posts were reserved for Scheduled Castes and Scheduled Tribes. An advertisement was issued on 22nd January, 1986 by the Maharashtra Public Service Commission whereby the qualifications for the posts of the Civil Judge (J.D.) and Judicial Magistrate (First Class) were laid down and it was stipulated that the candidates should have as an advocate, attorney or pleader, having a practice of three years as on 7th March, 1986 in the High Court of Bombay or in any other courts subordinate to the High Court. The candidates should have also knowledge of Marathi. In the advertisement it was further stipulated that the candidates should be between the age of 21 to 35 years and for the backward class candidates the age limit has been stipulated upto 40 years as on 1st of May, 1985. The said advertisement also provided that the candidates will have to appear for written examination in two papers. The first paper consisting of 100 marks and include the following subjects ,-- 1. Civil Procedure Code 2. Transfer of Property Act 3. Specific Relief Act, and 4. Law of Contracts, Sale of Goods Act and Partnership Act. 2. The second paper also was of 100 marks and the following subjects were included : 1. Indian Penal Code 2. Evidence Act 3. Code of Criminal Procedure, and 4. An essay on the subject connected with law. 3. As per that advertisement written test was compulsorily required to be undergone by every applicant for the said judicial posts. 2. The second paper also was of 100 marks and the following subjects were included : 1. Indian Penal Code 2. Evidence Act 3. Code of Criminal Procedure, and 4. An essay on the subject connected with law. 3. As per that advertisement written test was compulsorily required to be undergone by every applicant for the said judicial posts. According to the petitioner respondents herein, neither the State of Maharashtra nor the Commission had any authority to compel the applicants to appear for written examination. The candidates who have not only obtained the LL.B. Degree but also have been practising as advocates in the High Courts as well as in the subordinate courts were required to appear in the written tests. This was, according to the respondent, unauthorised. 4. The petitioner-respondent herein stated that the advertisement issued by the Commission was illegal inasmuch as it required holding of the written test. The matter came up before the High Court for hearing at an interim stage. The High Court fixed the matter for final hearing disposed of the matter by the judgment impugned. By the judgment under appeal the High Court was of the view that the procedure prescribed for conducting compulsory written test was not necessary under the Maharashtra Public Service Commission nor was it necessary to provide in qualifying standard for interview, for general and backward classes. According to the High Court it was essential to get the approval of the Governor as required under Article 234 of the Constitution any introduction of new rules or modification of the existing rules. For these reasons the High Court was of the view that the test procedure evolved for recruitment of Civil Judge and Judicial Magistrates as indicated by the advertisement in this case was illegal and unconstitutional. Therefore, this was quashed and the rule issued was made absolute. Special leave to appeal from this order was granted by this Court. This Court in the meantime by its order dated 15th May, 1986 had directed that examination might be held as stipulated in the advertisement, but the result of this written examination would abide by the result of the appeal. It is now necessary, therefore, to examine whether the procedure indicated in the advertisement was contrary to the rules or in contravention of the Article 234 of the Constitution. It is now necessary, therefore, to examine whether the procedure indicated in the advertisement was contrary to the rules or in contravention of the Article 234 of the Constitution. The procedure for appointment of Civil Judges is guided by Rule 4 (iv) of the Bombay Judicial Service Recruitment, 1956. The said rule provides that the appointments to the posts of Civil Judges (Junior Division) and Judicial Magistrates of the First Class shall be made by nomination from members of the Bar (or in special circumstances by re-employment of retired Civil Judges (Junior Division) or by nomination from among officers of other services. Clause (ii) of sub-rule 4 stipulates that the appointment shall be made by the Governor in consultation with the Commission (except that it shall not be necessary to consult the Commission in re-employing retired Civil Judges (Junior Division), provided that the Commission shall invite a representative of the High Court to be present at the interview held by the Commission for this purpose and the representative so present may take part in the deliberations of the Commission but shall not be entitled to vote. 5. It may be necessary to mention here that sub-rule (iii) of clause (b) provides that unless otherwise expressly directed, ordinarily advocated who have practised as advocates, attorneys or pleaders in the High Court or courts subordinate thereto for not less than three years on the last date prescribed for the submission of the applications would be eligible for selection. These rules are in conformity with Article 224 of the Constitution which stipulates that 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 made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. The procedure might be evolved by the administrative directions provided those do not run counter to the requirement of such administrative procedure as are enjoined by the Constitution. The procedure might be evolved by the administrative directions provided those do not run counter to the requirement of such administrative procedure as are enjoined by the Constitution. Reference may be made to a decision of this Court in the case of Sant Ram Sharma v. State of Raicsthan and another, (1968) 1 SCR 11, where this Court observed that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions if not found in the Rules already framed. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. 6. This position in law has been universally applied by this Court and other courts in the field where there is no specific rules. There is in this case no statutory rules dealing with the situation with the present case by which examination was directed to be held. It may be noted that in selection of this nature over 2100 candidates offered themselves as candidates. For the interview it would have been practically impossible to select the candidate without written test. To have interviewed 2100 candidates with the help of a High Court Judge would have practically been impossible. Administrative rules under the Constitution are meant to be so construed as these work and effectuate the purpose for which these were intended. If for proper administration in a conducive manner and method a rule which is not contrary to existing rules or existing method is evolved to decide which is not contrary to Constitution and the law, it cannot be said that any new rule has been introduced in violation of the statutory provisions of Article 234 of the Constitution. If for proper administration in a conducive manner and method a rule which is not contrary to existing rules or existing method is evolved to decide which is not contrary to Constitution and the law, it cannot be said that any new rule has been introduced in violation of the statutory provisions of Article 234 of the Constitution. It may be mentioned that this procedure was evolved in consultation with the Government, Public Service Commission, and the High Court, namely the three major agencies who are involved in the job of selection and framing of other rules. 7. We may note here that written examination is not an uncommon procedure. It may be noted that in other States also for example in the State of Madhya Pradesh such a written examination is being conducted. It appears that there is nothing illegal or violative of statutory provision of Article 234 of the Constitution in conducting the written examination to the procedure enjoined in Article 234 of the Constitution. It further appears to be fair and just to have preliminary scrutiny by written examination so that after that in interviews salient requirements can be focused. It is a rational method. It is a fair method. It is not an uncommon method. It saves time and avoids waste. 8. The petitioner's grievance which seems to have impressed the High Court was that their right to interview has been interfered with. A person who is eligible for a job has no right as such to any interview. He has right to be considered by a procedure which is fair and just and reasonable and a common to all. Indeed this seems to be more fair, reasonable and just for selection from the other posts. The respondent's right has not been interfered with. In that view of the matter we do not find that any right of the petitioner has been interfered with or procedure which has been evolved is unfair or there was anything contrary to the rights or statutory rules governing the field. The High Court has made several other points to which with respect we are unable to subscribe. It is further observed that a large number of 2 officers' posts are lying vacant and as is common in this country in the field of judiciary. The High Court has made several other points to which with respect we are unable to subscribe. It is further observed that a large number of 2 officers' posts are lying vacant and as is common in this country in the field of judiciary. Taking into consideration all the facts and circumstances of the case, we are of the view that the High Court of Bombay was in error in passing the impugned order. The said order and judgment dated 25th April, 1986 is hereby set aside and the appeal is 3 allowed. Interim orders, if any, will stand vacated. 9. In the facts and circumstances of the case, there will be no order as to costs.