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Gujarat High Court · body

2007 DIGILAW 673 (GUJ)

ARCHANA ROBIN THACKER v. HIGH COURT OF GUJARAT

2007-10-10

S.R.BRAHMBHATT

body2007
( 1 ) THE petitioners, aspirants for the post of Civil Judge and Judicial Magistrate First Class, in both these petitions under Article 226 of the Constitution of India have sought declaration that they are entitled to receive the benefit of relaxation in upper age limit as per Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. ( 2 ) THE State of Gujarat exercising powers under Article 309 of the Constitution issued Notification dated 29. 09. 2005 amending the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. The Rule 16 (E) came to be promulgated under the Gujarat Civil Services Classification and Recruitment (General) (Amendment) Rules 2005 providing for five years relaxation in upper age limit prescribed in any recruitment rules for appointments to be made by direct selection or through competitive examinations to any services or post included in the State Subordinate Services or inferior services under the State as far as it related to the advertisement given by the Gujarat Public Service Commission and other Recruiting Authority or Agency during the period from 17. 08. 2005 to 16. 08. 2006. The State of Gujarat also issued a circular dated 25. 11. 2005 emphasizing need to implement the Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 and instructed the Recruiting Authorities and Agencies to even issue supplementary advertisement providing relaxation of five years in upper age limit where the recruitment procedure was yet not over. ( 3 ) THE High Court of Gujarat, vide Advertisement dated 24. 01. 2006 invited applications from the eligible candidates for recruitment to the post of Civil Judge and Judicial Magistrate First Class in the State of Gujarat. It is provided in this advertisement that candidate belonging to General Category must not have attained age of 35 years on 24. 02. 2006 i. e. the last date fixed for receipt of the application forms. ( 4 ) ITS admitted position that both the petitioners unfortunately crossed the upper age limit of 35 years on 24. 02. 1971 by few days as petitioner in SCA 25756 of 2007 was born on 1. 02. 1971 and petitioner in SCA NO. 25757 of 2007 was born on 09. 01. 1971. ( 4 ) ITS admitted position that both the petitioners unfortunately crossed the upper age limit of 35 years on 24. 02. 1971 by few days as petitioner in SCA 25756 of 2007 was born on 1. 02. 1971 and petitioner in SCA NO. 25757 of 2007 was born on 09. 01. 1971. However both the petitioners, who are working on the establishments of District Courts submitted their application through proper channels, as on the date of the submission of their applications they had not attained the upper age limit of 35 years. ( 5 ) SHRI Vaishnav, Learned Counsel for the petitioners submitted that both the petitioner are entitled to receive benefit of the relaxation in upper age limit under Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 as amended vide Notification called Gujarat Civil Services Classification and Recruitment (General) (Amendment) Rules, 2005, dated 29. 09. 2005. The advertisement in question inviting application forms for recruitment to the posts of Civil Judges and Judicial Magistrate First Class was released on 24. 01. 2006 and hence it was covered under Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. ( 6 ) SHRI Vaishnav Learned Counsel for the petitioners submitted that the post of Civil Judge and Judicial Magistrate First Class are State Services and as such covered under Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 and hence the aspirants like the petitioners are entitled to the relaxation of five years in the upper age limit prescribed in the advertisement for the post of Civil Judge and Judicial Magistrate First Class. ( 7 ) SHRI Vaishnav has submitted that the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 are rules framed under the provisions of Article 309 of the constitution of India and as such they shall prevail over all the recruitment rules including the recruitment rules governing the post of Civil Judge and Judicial Magistrate First Class. The language employed in Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 and starting of Rule with non-obstanta clause, that not withstanding anything contained in any other rules, go to show that Rule 16 (E) shall have overriding effect in its implementation above all other recruitment rules. The language employed in Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 and starting of Rule with non-obstanta clause, that not withstanding anything contained in any other rules, go to show that Rule 16 (E) shall have overriding effect in its implementation above all other recruitment rules. ( 8 ) THE Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 in terms provides relaxation of five years age in respect of direct recruitment and therefore a submission was canvassed that this being a position, the benefit of relaxation of five years in upper age limit ought to have been considered by the recruiting agency in the High Court and accordingly, the petitioners, who have been in fact within the age on the date of submission of the application forms but have crossed the upper age of 35 years on the appointed day i. e. on 24. 02. 2006 i. e. the last date for receiving the application forms, are entitled to get the benefit of five years relaxation by virtue of Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. ( 9 ) SHRI Pardiwala, learned counsel appearing for respondent No. 1 has submitted that the advertisement in question is issued in accordance with the Gujarat State Judicial Service Rules, 2005 and this Rules, specifically Rule 7 (c) prescribed the upper age limit of the candidates for the post of Civil Judges and Judicial Magistrate First Class. This Rules were framed pursuant to the decision of the Apex Court in case of ALL INDIA JUDGES ASSOCIATION AND OTHERS Vs. UNION OF IDNIA AND OTHERS, reported in AIR 2002 SC 1752 , which was in respect of accepting and implementing the recommendations of the First Indian Judicial Pay Commission, popularly known as shetty Commission . In the report of Shetty Commission, the Commission has recommended the age limit of 35 years and 45 years for the recruitment to the post of District Judge. Therefore, it would not be proper to prescribe any age beyond 35 years for recruitment to Civil Judge and Judicial Magistrate First Class. The Gujarat State Judicial Service Rules, 2005 have thus came to be framed prescribing the specific upper age limit and therefore, the amendment sought to be pressed into service namely Gujarat Civil Services Classification and Recruitment (General) (Amendment) Rules, 2005 published on 29. 9. The Gujarat State Judicial Service Rules, 2005 have thus came to be framed prescribing the specific upper age limit and therefore, the amendment sought to be pressed into service namely Gujarat Civil Services Classification and Recruitment (General) (Amendment) Rules, 2005 published on 29. 9. 2005 shall have no effect upon the specific recruitment rules. ( 10 ) SHRI Pardiwala has also placed reliance upon the decision of this Court in case of HOTCHAND PARMANAND MOTIRAMANI vs. STATE OF GUJARAT, reported in 1995 (1) GLR p. 164 and also on the case of STATE OF BIHAR and ANOTHER vs. BAL MUKUND SAH AND OTHERS, reported in AIR 2000 SC 1296 and submitted that the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 may not have any prevailing effect upon the shall prevail over and which has no res-integra and therefore, in light of the decision of in case of STATE OF BIHAR and ANOTHER vs. BAL MUKUND SAH AND OTHERS, reported in AIR 2000 SC 1296 , the amendment pressed into service into the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 should be of no avail. ( 11 ) THIS Court has heard the counsel for the parties at length and perused the relevant records. The facts and circumstances preceding promulgation of the Gujarat State Judicial Service Rules, 2005 deserves to be borne in mind while examining the rival contentions of the parties. The relevant extract of the Shetty Commissions recommendation in respect of fixing upper age in case of judicial officers are set out as under : recommendation BY THE COMMISSION : "para 8. 40 : While recommending the maximum age for recruitment of Civil Judges (Jr. Divn.), it is necessary to bear in mind the maximum age suggested by the Commission for direct recruitment of District Judges. There, we have indicated that the candidates should be between 35 and 45 years. Therefore, it is not proper to prescribe any age beyond 35 for selection to Civil Judges (Jr. Divn.)". ( 12 ) THUS Shetty Commission has in unequivocal terms recommended that for the appointments to the posts of Civil Judges the candidate must not have attained age of 35 years. The Apex Court in case of ALL INDIA JUDGES ASSOCIATION AND OTHERS Vs. Divn.)". ( 12 ) THUS Shetty Commission has in unequivocal terms recommended that for the appointments to the posts of Civil Judges the candidate must not have attained age of 35 years. The Apex Court in case of ALL INDIA JUDGES ASSOCIATION AND OTHERS Vs. UNION OF IDNIA AND OTHERS, reported in AIR 2002 SC 1752 has inter alia observed as under:- "para 32: In the All India Judge"s case, (1993) (4) SCC 288 at p. 314), this Court has observed that in order to enter the Judicial Service, an applicant must be an Advocate of at least three years" standing. Rules were amended accordingly. With the passage of time, experience has shown that the best talent which is available is not attracted to the Judicial Service. A bright young law graduate after 3 years of practice finds the Judicial Service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an Advocate for at least 3 years should be done away with. After taking all the circumstances into consideration, we accept this recommendation of the Shetty Commission and the argument of the learned Amicus Curiae that it should be no longer mandatory for an applicant desirous of entering the Judicial Service to be an Advocate of at least three years" standing. We, accordingly, in the light of experience gained after the judgment in All India Judges" case, directs to the High Court and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in even three years of practice, to be eligible to compete and enter the Judicial Service. We, however, recommend that a fresh recruit into the Judicial Service should be imparted with training of not less than one year, preferably two years. " "para 37 : Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted. " ( 13 ) IN consonance with the aforesaid the Gujarat State Judicial Service Rules, 2005 have been framed providing that a candidate for the post of Civil Judge must not have attained age of 35 years on the last date fixed for receipt of the application forms. " ( 13 ) IN consonance with the aforesaid the Gujarat State Judicial Service Rules, 2005 have been framed providing that a candidate for the post of Civil Judge must not have attained age of 35 years on the last date fixed for receipt of the application forms. The Rule 7 C of the Gujarat State Judicial Service Rules, 2005 read as under :- "7. :civil Judges : (c) must not have attained the age of thirty five years and must not have completed as on the last date fixed for receipt of applications thirty eight years of age in the case of candidates belonging to Scheduled Caste or Scheduled Tribes. " ( 14 ) THUS the upper age limit for the post of Civil Judge is fixed to be not more than 35 years on the last date of receipt of application forms. ( 15 ) THE Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 have been framed under the provisions of Article 302 of the Constitution of India. These rules provide for general guidelines in respect of recruitment in State Services. Thus they are general in nature whereas the Gujarat State Judicial Service Rules, 2005 framed under provisions of Article 302 read with Article 234 of the Constitution of India are special rules providing for recruitment of Judicial officers in the State of Gujarat this Court has in case of HOTCHAND PARMANAND MOTIRAMANI vs. STATE OF GUJARAT, reported in 1995 (1) GLR p. 164 unequivocally held that the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 has no supremacy over the then existing The Gujarat Judicial Services Recruitment Rules 1961 which are repealed by the Gujarat State Judicial Services Rules 2005. The Apex Court has in case of STATE OF BIHAR and ANOTHER vs. BAL MUKUND SAH AND OTHERS, reported in AIR 2000 SC 1296 also that powers of State to frame Service Rules under Article 309 get circumscribed to the extent special provisions are made regarding Judicial Services in view of Article 234 of the Constitution. Therefore by now in view of these judicial pronouncements the question of primacy to the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 is no more Res Integra. ( 16 ) THE Notification Dated 29. 09. 2005 also needs to be examined. Therefore by now in view of these judicial pronouncements the question of primacy to the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 is no more Res Integra. ( 16 ) THE Notification Dated 29. 09. 2005 also needs to be examined. The Rule 16 (E) reads as under:- "rule - 16 (E) : Notwithstanding anything contained in these Rules or in any rules or orders relating to recruitment to any service or post included in the State Subordinate Service or inferior services under the State, the upper age limit prescribed for appointment through competitive examination held for the purpose or by direct selection to such service or post shall be relaxed for five years as far as it relates to the advertisements given by the Gujarat Public Service Commission and other Recruitment Authorities or Agencies during the period from 17. 8. 2005 to 16. 8. 2006. This relaxation in the upper age limit shall be in addition to the relaxation available under Rule 8 or any other Rules or Orders, if any in this behalf. " ( 17 ) THUS it pertains only to the posts in the State Subordinate Services or inferior services. Rule 4 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 defines State Subordinate Services and Inferior Services as under:- "rule 4: State Services, Subordinate Services and Inferior Services :-The Services and posts classified as Class-I or Class-II shall be known as State Services. The services and posts classified as Class-III shall be known as Subordinate Services. The Services and posts classified as Class-IV shall be known as Inferior Services. " ( 18 ) IN view of this it can well be said that the Posts of Civil Judge and Judicial Magistrate First Class are neither State Subordinate Services nor Inferior Services hence the Section 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 has no applicability to the Posts of Civil Judge and Judicial Magistrate First Class and on this account also the petition is required to be rejected. ( 19 ) IN view of the aforesaid discussion, this Court is of the considered view that the petitioners have no case for pressing into service the Rule 16 (E) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 so as to claim relaxation of five years in upper age limit for being considered for the post of Civil Judge and Judicial Magistrate First Class. ( 20 ) IN the result, petitions deserve to be rejected and are rejected summarily. No order as to costs.