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2005 DIGILAW 1287 (RAJ)

K. S. Rathore v. State of Rajasthan

2005-05-02

K.S.RATHORE, SHIV KUMAR SHARMA

body2005
Judgment K.S. Rathore, J.-This writ petition is directed against the appointment order dated 010.2003 whereby 11 persons have been appointed on the post of President, District Forum, Consumer Protection. 2. By this writ petition, the petitioner prayed for quashing and setting aside the order dated 010.2003 so far as it relates to the respondent Nos. 6 and 7 and further seeks direction to fill up the vacancies of the post of President, District Forum, Consumer Protection by appointing eligible and competent persons belonging to Scheduled Caste community in accordance with law and consider the case of the petitioner favourably for his appointment on the said post. 3. The facts giving rise to this writ petition are that the respondent No. 5 invited applications from the eligible candidates fulfilling the legal conditions for appointment to the post of President, District Forum, Consumer Protection. For this purpose, the respondent No. 5 made a request to the respondent No. 2 to send a list and applications of eligible in-service judicial officers and the list was sent by the High Court alongwith the applications of in-service judicial officers. The retired District Judge submitted their applications directly to the respondent No. 5. 4. The petitioner also submitted his application alongwith his caste certificate and copies of requisite service record of last five years, directly to the respondent No. 5. 5. The selection committee constituted under Sub-section 1-A of Section 10 of the Act interviewed the applicants. The petitioner also appeared in interview pursuant to interview call letter dated 18.09.2003. 6. The officers appointed by the aforesaid order included working District Judge, retired District Judge and officiating Additional District Judge. In the appointment order, the name of the respondent Nos. 6 and 7 appeared at S. Nos. 7 and 3, were officiating Additional District Judges from May, 1999 only and the petitioner as well as respondent Nos. 6 and 7 belongs to the Scheduled Caste community. Since, respondent Nos. 6 and 7 have been given appointment being member of the Scheduled Caste community have far lesser merit qua the petitioner and they do not fulfill the legal conditions for appointment for the said post and the petitioner has been discriminated, therefore, the present writ petition has been filed by the petitioner. 7. Beside the merit of the respondent Nos. 6 and 7, the petitioner has also challenged the appointment order of respondent Nos. 7. Beside the merit of the respondent Nos. 6 and 7, the petitioner has also challenged the appointment order of respondent Nos. 6 and 7 on the ground that the same has been issued in violation of provisions of Articles 14 and 16 of the Constitution of India and the petitioner being meritorious retired District Judge cannot be denied his entitlement for appointment on the ground that inservice officers though lesser merit are eligible to be appointed. The Appointing Committee cannot be permitted to act arbitrarily for the purpose of appointment as held by Honble Supreme Court in various Judgment s. 8. Section 3(17) of the General Clauses Act, 1897 defines the District Judge. As per Sub-section 17 of Section 3, District Judge shall mean the Judge of a principle civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. It is contended that an Additional District Judge, ordinarily, does not preside over the principal civil Court of original jurisdiction nor he can exercise the powers of the District Judge in certain matters unless such powers are conferred on him or assigned to him. 9. Article 236(a) of the Constitution lays down the expression "District Judge" includes Judges of a city civil Court, Additional District Judge etc. has no application in the matter of appointment to the post of the President, District Forum under the Act and the like posts under different Acts. 10. Learned Counsel for the petitioner further referred Clause (f) of Rule 3 of the Rajasthan Higher Judicial Service Rules, 1969 which speaks that member of the service means a person appointed in a substantive capacity to a post in the service. 11. In support of his submissions, learned Counsel placed reliance on the Judgment rendered by Honble Supreme Court in case of B.S. Vadera vs. Union of India, W.P. No. 96 of 1967 and W.P. No. 165 of 1967 decided on 27.03.1968 has held that no claim can be based on temporary, officiating promotion. 12. In case of Union of India vs. Gajendra Singh (Civil Appeals No. 314 to 320 decided on 07.03.1972), the Honble Supreme Court held that a Government servant appointed to officiating post acquires no right and that the appointment on officiating basis is of transitory character. .13. Per contra, learned Additional Advocate General Mr. 12. In case of Union of India vs. Gajendra Singh (Civil Appeals No. 314 to 320 decided on 07.03.1972), the Honble Supreme Court held that a Government servant appointed to officiating post acquires no right and that the appointment on officiating basis is of transitory character. .13. Per contra, learned Additional Advocate General Mr. Bharat Vyas submits that while making the selection, the selection committee has considered the service record of the candidates. Thereafter, only selected the suitable candidates and recommendation was made to the State Government. The Committee consists of Chairman, State Commission, Law Secretary and the Secretary for Food and Civil Supplies. Placing reliance on the provisions of Article 236 (A) of the Constitution Mr. Bharat Vyas submits that Additional District Judge is also covered by the definition of District Judge, therefore, the Additional District Judge is also eligible to be appointed on the post of President, District Forum Consumer Protection. Mr. Bharat Vyas also placed the proceedings of interview and the principles adopted in selection and overall assessment of suitability and fitness, which are reproduced hereunder:- .(i) Integrity, honesty and general reputation of the applicant asjudicial officer and as a man followed by efficiency and dedication to service to the litigating public should be the guiding factors for making comparative assessment of the fitness and suitability for selection. .(ii) Retirement of an applicant from service, whether on attaining the age of super annuation or extended period of service, unless such retirement carries a stigma with it, should not adversely affect his over-all comparative fitness and suitability. (iii) Compulsory retirement under Rule 53 of the Rajasthan Pension Rules of an applicant should be viewed at adversely while making over-all comparative assessment of his fitness and suitability. .(iv) Pendency of a disciplinary enquiry under Rule 16 of the CCA Rules at the time of his retirement or initiation of such proceedings against him after his retirement (which may not be compulsory), is also to be viewed adversely while making the overall comparative fitness and suitability of the applicant for selection. .(v) Non-section of an applicant for appointment as President of a Forum, for no specific and special reasons, at some earlier occasion, is not to be read against him. .(v) Non-section of an applicant for appointment as President of a Forum, for no specific and special reasons, at some earlier occasion, is not to be read against him. Similarly non-joining the post of President of a District Forum, after having been appointed by the State Government thereto at an earlier occasion, should not also adversely affect his over-all comparative fitness and suitability. .(vi) Since, a number of applicants have requested consideration of their fitness and suitability for appointment to any of the District Forum in the State or to any one of the Forums, out of those mentioned in their respective applications, they, in particular, may be so considered and all others in general, may be asked if they were prepared to render service at a Forum, other than that of their choice, so that their over-all comparative fitness and suitability may be assessed for such other Forums also. (vii) Inview of the interim order of the Honble Supreme Court dated 211.2000 made in SLP (Civil) No. 6928 of 1999 State of U.P. vs. Jeet S. Bist & Anr. and the item on the agenda of the Conference of Presidents and Registrars, being held at New Delhi on 9th and 10th February, 2002, each and every applicant be asked if he would be willing and ready to accept such changes, if any, made in his service conditions subsequent to his appointment to a Forum, which changes may include his shifting from one Forum to another either by transfer or for holding Camps temporary. (viii) As far as possible, selection of an applicant for appointment to a Forum, where he is practicing/has practised, be not made and such possibility be disclosed to him at this interview. .(ix) All things being equal preference in comparative assessment be given to such applicants who exhibit sensitivity to the grievances of the consumer public, eagerness to solve their problems in non-traditional atmosphere of Court procedure and practice, clarity for legal concepts of consumer and other allied laws and a will to promote and advance the cause of consumer movement in the State. .(x) Non-selection of an applicant for the present vacancies shall not be construed as disqualification for his consideration for selection for similar vacancies of Presidents in future. 14. .(x) Non-selection of an applicant for the present vacancies shall not be construed as disqualification for his consideration for selection for similar vacancies of Presidents in future. 14. Having considered the rival submissions of the respective parties and upon perusal of the selection proceedings and the criteria laid down for adjudging the suitability of the candidates for selection on the post of President, District Forum Consumer Protection, it appears that for overall assessment of the suitability, the applicant should possess the integrity, honesty and general reputation as judicial officer and as a man followed by efficiency and dedication to service to the litigating public should be the guiding factors for making comparative assessment of the fitness and suitability for selection and the same can only be ascertained from the service record of the judicial pronouncement of the concerned judicial officer and the ACRs. 15. It is also made clear that cases of persons compulsorily retired under Rule 53 of the Rajasthan Pension Rules shall be closely considered while making overall assessment fitness and suitability and then service record shall be viewed adversely. The pendency of disciplinary enquiry under Rule 16 at the time of his retirement should also be viewed adversely. 16. It appears that the respondents have not followed the guidelines framed by them religiously and strictly for the purpose of adjudging the suitability. Since, the appointments have already been made, at this stage, we do not want to interfere in the appointment order dated 010.2003. However, we like to observe that in future, the respondents shall follow the afore-quoted guidelines and the principles for interview religiously and strictly and the appointments should be made after adjudging the suitability and overall assessment, comparative assessment in accordance with the parameters quoted as indicated above. 17. With the aforesaid observations, the writ petition stands disposed of .