H. D. Mitaramani v. STATE — 1994 DIGILAW 311 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE decision to appoint respondent No. 4 herein as registrar/additional Registrar on the establishment of the City Civil Court at Ahmedabad (the Registrar/additional Registrar for convenience) is under challenge in this petition under Article 226 of the Constitution of India. The petitioner has also laid his claim on the post of Registrar/additional Registrar and prayed for his promotion/nomination as such thereto. ( 2 ) THE facts giving rise to this petition are not many and not much in dispute. Respondent No. 4 joined the services in the District Court of Ahmedabad in 1960 as a section Writer. On establishment of the City Civil Court under the Ahmedabad City courts Act, 1961 (the Act for brief), he was taken on its establishment. He became a superintendent in 1979 by promotion. He was promoted as a Deputy Registrar on and from 15th March 1993. At that point of time, one Shri N. I. Husseini was holding the post of Registrar. On retirement of Shri Husseini, from 1st November 1993 respondent No. 4 was handed over the charge of the Registrars post. He has been working as a Deputy registrar and has been holding the charge of the post of Registrar since then. It appears that respondent No. 2 decided to appoint respondent No. 4 as Registrar/additional registrar. The petitioner considered himself to be eligible for the post of Registrar and he claims to have better and superior claims over respondent No. 4 for the said post. He has therefore approached this Court by means of this petition under Article 226 of the constitution of India for questioning the correctness of the decision to appoint respondent no. 4 as Registrar/additional Registrar. ( 3 ) IT may not be out of place to mention at this stage that the petitioner was directly appointed as a Stenographer Grade I (popularly known as Personal Assistant at the relevant time) on the establishment of the City Civil and Sessions Court at Ahmedabad (Stenographer for convenience) on and from 16th July 1966. He came to be confirmed in that post in due course of time. While working as such, he passed his LL. B (Special) examination in 1972. He was put in the Selection Grade after putting in service for about 13 years. He also passed the Intermediate Examaination of Company Secretaries of India in 1977. He came to be confirmed in that post in due course of time. While working as such, he passed his LL. B (Special) examination in 1972. He was put in the Selection Grade after putting in service for about 13 years. He also passed the Intermediate Examaination of Company Secretaries of India in 1977. On the date of this petition, he is stated to have put in service of nearly 27 years. According to him, respondent No. 4 is not eligible for appointment as registrar/additional Registrar. It is the case of the petitioner that he is eligible for that post. ( 4 ) IN exercise of the powers conferred by the proviso to Article 309 of the constitution of India, the Governor of Gujarat, after consultation with the Gujarat Public service Commission and the High Court of Gujarat and in supersession of all existing rules on the subject, framed the Ahmedabad City Courts (Classification of and recruitment to Posts of Registrar and Deputy Registrar) Rules, 1961 (the 1961 Rules for brief ). A copy of the said Rules is at Annexure-C to this petition. Rule 3 thereof provides for the source of recruitment to the post of Registrar. It is an admitted position that at that time there was no post of Additional Registrar in existence. It is not in dispute that the pay scale for the posts of Registrar and Additional Registrar is the same. It is not necessary to dilate upon as to what the powers, the functions and duties of Additional Registrar are. However, for the purpose of this petition, I shall treat the post of Additional Registrar at par with that of Registrar. In that view of the matter, the 1961 Rules should take within its purview the post of Additional Registrar as well. ( 5 ) THE mode of recruitment to the post of Registrar under Rule 3 thereof is shown to be (i) by promotion of a member of the establishment of the City Civil and Sessions Court or (ii) by transfer of a member of the staff attached to the High Court of Gujarat or a member of Class II of the Junior Branch of the Gujarat Judicial Service as constitued under the Gujarat Judicial Service Recruitment Rules, 1961 or (iii) by nomination. Since both the petitioner and respondent No. 4 are members of the establishment of the City civil and Sessions Court at Ahmedabad, appointment to the post of Registrar in their case can be made only by promotion unless it is decided to fill it up by nomination. ( 6 ) RULE 4 of the 1961 Rules prescribes qualifications for appointment by promotion or transfer. It reads:"to be eligible for appointment as Registrar by promotion or transfer a candidate must (a) hold a degree in law of any University recognised for the purpose of enrolment as an Advocate or (b) have been admitted to the Bar of england, Northern Ireland or Scotland, or (c) be an Advocate enrolled under the Indian Bar Councils Act, 1926 or the Advocates Act, 1961 or an Attorney of the High Court of Bombay or Calcutta or a Pleader admitted under the bombay Pleaders Act, 1920 or (d) have passed the Advocates Examination held by the Bombay Bar Council prior to June 1941 under its old Rules, and have seven years office experience of the working of the Courts. If such person has practised as an Advocate, Pleader or Attorney prior to his joining government Service, the period of such practice will be considered as forming part of office experience. "in the case of the petitioner and respondent No. 4, the prescribed qualifications are a degree in law of any University recognised for the purpose of enrolment as an Advocate and seven years office experience of the working of the Courts. According to the petitioner, respondent No. 4 does not fulfil the criteria of eligibility for appointment to the post of Registrar under Rule 4 of the 1961 Rules. Respondents Nos. 1 to 3 on the one hand and respondent No. 4 on the other have contended to the contrary. ( 7 ) MY attention has been invited to Rule 11-A of the Gujarat Civil Services classification and Recruitment (General) Rules, 1967 (the 1967 Rules for brief ). It has been introduced therein by amendment in 1985. A copy of the Amending Rules is at annexure-I to the affidavit-in-rejoinder to the reply filed by and on behalf of respondent no. 4. It has been introduced therein by amendment in 1985. A copy of the Amending Rules is at annexure-I to the affidavit-in-rejoinder to the reply filed by and on behalf of respondent no. 4. It has inter alia been provided in Rule 11 -A of the 1967 Rules that no person shall be promoted from Class II service to Class I service unless he has an experience of eight years in Class II service from which he is to be promoted. Relying on the aforesaid provision contained in Rule 11-A of the 1967 Rules, Shri Thakore for the petitioner has urged that respondent No. 4 is not eligible for appointment to the post of Registrar whereas the petitioner fulfils the prescribed qualifications for the purpose. As against this, it has been urged by both Shri Dave for respondents Nos. 1 to 3 and by Shri Gandhi for respondent No. 4 that the 1961 Rules are general in nature and the 1967 Rules are specific in nature. According to them, the general rules will have no applicability when the specific rules govern the field. They have relied on the Division Bench ruling of this court in the case of Champaklal M. Bhavsar vs. State of Gujarat, reported in 1993 (2) 34 (2) Gujarat Law Reporter at page 1254. ( 8 ) BEFORE deciding the controversy regarding the nature of the 1961 Rules, it would be quite proper at this stage to deal with the nature of the post of Registrar. It would be quite proper to look at Section 7 of the Act. It reads:"7. (1) The State Government may appoint an officer to be the Registrar of the city Court. He shall be the chief ministerial officer of the Court; and shall exercise such powers, discharge such duties of a ministerial nature as the Judge of the City Court, or when the Court consists of more than one Judge, the principal Judge may, from time to time, by rules, direct. (2) The State Government may, with the previous approval of the High Court, invest the Registrar with any powers of the Judge of the City Court other than powers of trying suits and proceedings. "on bare perusal of Sub-section (2) thereof it becomes clear that the Registrar can and may be invested with any powers of the Judge of the City Civil Court other than powers of trying suits and proceedings. "on bare perusal of Sub-section (2) thereof it becomes clear that the Registrar can and may be invested with any powers of the Judge of the City Civil Court other than powers of trying suits and proceedings. This can obviously be done by the State Government only with the previous approval of the High Court The aforesaid statutory provision would go to show that the Registrar can exercise powers of the Judge of the Civil Court other than powers of trying suits and proceedings if he is invested with such powers. In exercise of the powers conferred by Section 7 (2) of the Act, the Government of Gujarat has with the previous approval of the High Court invested the Registrar of the Ahmedabad City Civil court with certain powers of its Judge with effect on and from 4th November 1961. It is not necessary to refer to all these powers. In fact, the very statutory provision contained in section 7 (2) of the Act would make it clear that the powers with which the Registrar has been invested are powers of the Judge of the City Civil Court at Ahmedabad established under the Act In that view of the matter, there is no hesitation in coming to the conclusion that the Registrar holds a Civil Judicial post and will therefore be a member of the Judicial Service for the purposes of Article 234 of the Constitution of India. ( 9 ) I am fortified in my view by the binding ruling of the Supreme Court in the case of state of Gujarat vs. Ramesh Chandra, reported in AIR 1977 Supreme Court at page 1619. On examination of the Scheme of the Presidency Small Courts Act, 1882, the Registrar of the Small Causes Court at Ahmedabad was held to be holding a Civil Judicial post and was therefore a member of the Judicial Service for the purposes of Article 235 of the constitution of India. By analogy, the aforesaid binding ruling of the Supreme Court will hold the field in the present case. ( 10 ) THE expression "judicial Service" occurs both in Articles 234 and 235 of the constitution of India. That expression has been defined in Article 236 (b) thereof. By analogy, the aforesaid binding ruling of the Supreme Court will hold the field in the present case. ( 10 ) THE expression "judicial Service" occurs both in Articles 234 and 235 of the constitution of India. That expression has been defined in Article 236 (b) thereof. It would be a trite statement to observe that that definition would be applicable to the expression of "judicial Service" occurring in both Articles 234 and 235 of the Constitution of India. If the Registrar of the Small Causes Court at Ahmedabad is held to be a member of Judicial service for the purposes of Article 235 of the Constitution of India, he can also be held so for the purposes of Article 234 thereof. On examination of the Scheme of Section 7 of the act in the light of conferment of certain powers of the Judge of the City Civil Court of ahmedabad on the Registrar by the State Government as aforesaid, there is no escape from the conclusion that the Registrar will have to be held as holding a Civil Judicial post and therefore a member of the Judicial Service inter alia for the purposes of Article 234 of the Constitution of India in view of the aforesaid binding ruling of the Supreme Court. ( 11 ) ONCE it is found that the Registrar is a member of the Judicial Service, his appointment would be governed by the constitutional mandate contained in Article 234 of the Constitution of India. His appointment has to be made by the Governor of the State in accordance with the 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. As pointed out hereinabove, the 1961 Rules have been framed by the governor of Gujarat after consultation with the Gujarat Public Service Commission and the High Court of Gujarat. Thus, the constitutional mandate contained in Article 234 of the Constitution of India has been complied with while framing the 1961 Rules. It is true that no specific mention of Article 234 of Constitution of India has been made in the preamble thereto. Non-mentioning of the aforesaid constitutional mandate in the preamble would not mean that the mandate contained in that provision has not been complied with. It is true that no specific mention of Article 234 of Constitution of India has been made in the preamble thereto. Non-mentioning of the aforesaid constitutional mandate in the preamble would not mean that the mandate contained in that provision has not been complied with. I am supported in my view by the ruling of the Allahabad High Court in the case of farzand vs. Mohan Singh, reported in AIR 1968 Allahabad at page 67. In that case, the validity of the U. P. Civil Service (Judicial Branch) Rules, 1951 (the U.-P. Rules for brief) was under consideration. The challenge to its validity was inter alia on the ground that its preamble mentioned only Article 309 and hot Article 234 of the Constitution of Inda. In that context, it has been held that non-mentioning of Article 234 of the Constitution of india in the preamble of the U. P. Rules would not invalidate the said Rules. The allahabad High Court has stated this principle of law after reviewing the case law, more particularly certain binding rulings of the Supreme Court as transpiring from paragraphs 25 to 27 at pages 72 and 73 of the reported ruling. I do not propose to burden this judgment of mine by quoting extensively therefrom. I am in respectful agreement with the principle of law enunciated therein. It is on all fours applicable in the present case. Non-mentioning of Article 234 of the Constitution of India in the 1961 Rules would neither invalidate them nor would render them made only under Article 309 of the constitution of India de hors Article 234 thereof. ( 12 ) ONCE it is found that the 1961 Rules are made under Article 309 read with Article 234 of the Constitution of India, they will govern appointment to the post of registrar/additional Registrar to the exclusion of any general rules governing recruitment to any other class of service. It cannot be gainsaid that the 1967 Rules are general in nature and they inter alia govern appointments to the classes of service other than Judicial service. For the post inter alia of Regisrar/additional Registrar in the Judicial Service, the only Rules governing the appointment thereto would be the 1961 Rules. ( 13 ) I am fortified in my view by the binding Division Bench ruling of this Court in the case of Champaklal (supra ). For the post inter alia of Regisrar/additional Registrar in the Judicial Service, the only Rules governing the appointment thereto would be the 1961 Rules. ( 13 ) I am fortified in my view by the binding Division Bench ruling of this Court in the case of Champaklal (supra ). In that case, prescription of the age-limit of 45 years for entry in the Judicial Service in the Gujarat Judicial Service Recruitment Rules, 1961, was sought to be invalidated by pressing into service the 1967 Rules. In that context, this court has held that the 1967 Rules were general and the Gujarat Judicial Service recruitment Rules, 1961 were special rules, and the general rules will have no application while considering the case falling within the purview of the special rules. I am bound by the aforesaid Division Bench ruling of this Court. Even otherwise, I am in respectful agreement therewith. ( 14 ) ONCE it is found that the 1967 Rules are general and the 1961 Rules are special rules, the special rules will have primacy over the general rules in view of the aforesaid binding Division Bench ruling of this Court. Rule 11-A of the 1967 Rules will have therefore no application for the purpose of determining the eligibility of the candidate to be appointed to the post of Registrar/additional Registrar. ( 15 ) IT is not necessary to examine in this context the submission urged before me by shri Thakore for the petitioner to the effect that exclusion of Rule 11-A of the 1967 Rules from consideration would create an anomalous situation inasmuch as a person working in the lowest class of service on the establishment of the City Civil Court at Ahmedabad answering the eligibility criteria under Rule 4 of the 1961 Rules can be promoted to the post of Registrar/additional Registrar permitting him to jump from the lowest class of service to Class I service. The reason therefor is quite simple. It is not the case of the petitioner that respondent No. 4 was in the lowest class of service and he is made to jump to Class I service. It is not in dispute that the post of Registrar is in Class I service and the post of Deputy Registrar is in Class II service. It is immaterial whether or not the petitioner is in Class II service. It is not in dispute that the post of Registrar is in Class I service and the post of Deputy Registrar is in Class II service. It is immaterial whether or not the petitioner is in Class II service. I do not propose to examine the submission urged before me by Shri Thakore for the petitioner to the effect that the petitioner can also be said to be in Class II service in view of the ruling of this Court in Special Civil Application No. 7140 of 1989 decided on 25th February 1994 (per N. J. Pandya, J. ). Its copy is at annexure-3 to the affidavit-in-rejoinder to the reply filed by respondent No. 4. Examination of that contention would have become necessary if Rule 11-A of the 1967 rules was found applicable in the present case. ( 16 ) SO far as respondent No. 4 is concerned, he fulfils the eligibility criteria prescribed in Rule 4 of the 1967 Rules. It is not in dispute that he possesses a degree in law of a recognised University entitling him to enrolment as an Advocate. It is not in dispute that he possesses office experience of seven years in the working of the Courts. It transpires from the affidavit-in-reply filed by and on behalf of respondent No. 4 that he has worked in the City Civil Court in different capacities and in different positions since 1960. In that view of the matter, there is no escape from the conclusion that he possesses the requisite office experience of the working in the Courts for more than seven years. Since the petitioner is admittedly junior to respondent No. 4, it is not necessary to examine the question whether or not the petitioner possesses the requisite office experience in the working of the Courts for the purposes of Rule 4 of the 1967 Rules. It may be mentioned that seniority of respondent No. 4 alone is not considered as a guiding factor for decision to appoint him as Registrar/additional Registrar. ( 17 ) IN view of my aforesaid discussion, I am of the opinion that the decision to appoint respondent No. 4 as Registrar/additional Registrar on the establishment of the city Civil Court at Ahmedabad is quite just and quite proper, legal and valid. It calls for no interference by this Court in this petition under Article 226 of the Constitution of india. It calls for no interference by this Court in this petition under Article 226 of the Constitution of india. ( 18 ) SHRI Dave for respondents Nos. 1 to 3 informs me that the post of Registrar has already been filled in and is no longer available either to the peitioner or to respondent no. 4. In that case, the decision to appoint respondent No. 4 would be to the post of additional Registrar. If that be so, no post of Registrar would be available to which the petitioner can lay his claim. No direction can therefore be given either to promote the petitioner to the post of Additional Registrar or to fill the said post by nomination. ( 19 ) IN the result, this petition fails. It is hereby rejected. There shall however be no order as to costs on the facts and in the circumstances of the case. ( 20 ) AT the oral request of Shri Thakore for the petitioner, the operation of this judgment is stayed for a period of two weeks from today to enable the petitioner to carry the matter before the appellate forum by means of an appropriate proceeding. .