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2011 DIGILAW 659 (GUJ)

B. B. Purohit v. State of Gujarat

2011-09-08

J.B.PARDIWALA, S.J.MUKHOPADHAYA

body2011
JUDGMENT : J.B. Pardiwala, J. This writ petition has been preferred by an Assistant working in the establishment of this High Court for the following reliefs :- "(A) To admit and allow the petition; (B) To allow the petitioner to apply for the post of Civil Judge, as per the advertisement No. RC/0719/2011 and permit the petitioner to appear in the examination that is scheduled on 11.9.2011 pending and/or final disposal of the petition; (C) To stay the recruitment process for the post of Civil Judges as per the advertisement No. RC/0719/2011, published on the web site of the High Court, pending and/or final disposal of the petition; (D) To pass any other appropriate and just order as may be deemed fit to the present petition; 2. The petitioner herein, working as an Assistant in the establishment of the High Court of Gujarat seeks relaxation in the upper age limit as a special case in order to permit him to appear in the examination for the post of Civil Judge, in the pay-scale of Rs. 27,700 - 44,850, pursuant to the on-line advertisement issued by the High Court of Gujarat on 4.7.2011 for filling up, by Competitive Examination, approximately 137 regular vacancies and 369 ad-hoc vacancies. The petitioner made this request by his letter dated 26.7.2011 addressed to the Registrar (Recruitment and Finance), High Court of Gujarat. The same was declined by the Registrar (Recruitment and Finance) vide written communication dated 9.8.2011. It is at this stage that the petitioner thought fit to prefer the present petition. 3. We have heard learned Senior Counsel Mr. Percy Kavina appearing with learned Advocate Mr. Rushabh R. Shah for the petitioner, learned Counsel Mr. Shalin Mehta appearing for the High Court and Mr. P.K. Jani, learned Government Pleader appearing with Ms. Krina Calla, AGP for respondent No.1 State. 4. Learned counsel for the petitioner would submit that the High Court on its administrative side has taken a stand contrary to the rules laid down in Gujarat State Judicial Service Rules, 2005. Counsel would submit that prior to the advertisement dated 4.7.2011 for recruitment of Civil Judges, an advertisement was published on 16.9.2009 for the same cadre of Civil Judges, inviting on-line applications for filling up approximately 121 vacancies (existing and future). Counsel would submit that prior to the advertisement dated 4.7.2011 for recruitment of Civil Judges, an advertisement was published on 16.9.2009 for the same cadre of Civil Judges, inviting on-line applications for filling up approximately 121 vacancies (existing and future). Pursuant to the advertisement dated 16.9.2009, recruitment process was undertaken and 127 candidates were declared successful and were given appointment on the basis of the advertisement dated 16.9.2009. Counsel further submitted that the appointments were given in November, 2010 and in May, 2010, more than 60 Civil Judges (Junior Division) were promoted as Civil Judges (Senior Division), and therefore it could be ascertained that over and above 127 appointments made in November, 2009 to the post of SCA/12616/2011 4/12 JUDGMENT Civil Judges, vacancies of more than 60 posts of Civil Judges had already accrued. Learned counsel relied on Rule 10, Clause (2), sub-clause (i) of Gujarat State Judicial Service Rules, 2005, which reads as under:- "10. Recruitment: (2)(i) Whenever three or more vacancies required to be filled by direct recruitment occur in a cadre in the service or once in two years, whichever is earlier, the recruiting authority shall, invite by advertisement in the Official Gazette and in at least two newspapers, applications in such form as it may determine from intending candidates, who possess the prescribed qualifications. The advertisement shall indicate the number of vacancies notified for recruitment and the number of vacancies, if any, reserved for the Scheduled Caste, Scheduled Tribes and Other Backward Classes and shall contain all necessary information relating to the recruitment. It shall also indicate that an additional list of selected candidates would be prepared as per clause (iv)." Relying on the aforesaid Rule 10, counsel submitted that whenever there is three or more vacancies, which is required to be filled by direct recruitment, which occur in the cadre in service or once in two years, whichever is earlier, the recruitment authority shall invite by advertisement in official gazette and at least two newspapers, applications in such forms, as it may determine from intending candidates, who possess prescribed qualification. Counsel would further contend that High Court ought to have issued an advertisement in May, 2010 when more than 60 Civil Judges were promoted to the post of Civil Judge (Senior Division) and the posts fell vacant. Counsel would further contend that High Court ought to have issued an advertisement in May, 2010 when more than 60 Civil Judges were promoted to the post of Civil Judge (Senior Division) and the posts fell vacant. He would submit that the petitioner would have been eligible to appear as he was fulfilling the age criteria in May, 2010. 5. Counsel further relied on Rule 9 Gujarat State Judicial Service Rules, 2005, which reads as under:- "9. Disqualification for appointment:- No person shall be eligible for appointment to the service - (a) unless he is a citizen of India, (b) if he is dismissed from service by Central Government or any State Government or U.Ts or any High Court or statutory or local authority; (c) if he has been convicted of an offence involving moral turpitude or who is or has been permanently debarred or disqualified by any High Court or the Union Public Service Commission or by any recruiting or examination conducting authority from appearing in examinations or selections, (d) if he directly or indirectly influences the recruiting authority by any means for his candidature; (e) if he is a man, has more than one wife living and if a woman has married a man already having another wife; Relying on Rule 9, it is contended that a person becoming over age, would not incur a disqualification for appointment to the service and, therefore, it can be assumed that the authority i.e. High Court has got powers to relax the upper age limit. 6. Learned counsel further placed reliance on the judgment of the Supreme Court in the case of Malik Mazhar Sultan v. Uttar Pradesh Public Service Commission, reported in (2008) 17 SCC 703 . Relying on the judgment of the Supreme Court in Malik Mazhar Sultan v. U.P P.S.C (supra), learned counsel contended that the Supreme Court, in paragraph 9 had made a request to the Chief Justice of each High Court to constitute a Committee of two or three judges to monitor and oversee that timely selection and appointment of judicial officers is made. He further submitted that Supreme Court has also observed that the selection and appointment committee shall send to the Registrar General of the Supreme Court by 31st January of every year report as regards the filling up of vacancies with copies to Minister for Law and Justice in the Central Government and the Law Minister of the concerned State. Counsel has relied upon paragraphs 3, 9 and 10 of the judgment in the case of Malik Mazhar Sultan v. U.P. Public Service Commission (supra), which reads as under:- "3. In this matter, by judgment and order dated 3rd April, 2006, it was observed that it is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of final results and issue of order of appointment. It was further directed that for all these above and other steps, it is necessary to provide to fix time schedule so that the system works automatically and there is no delay in filling up of the vacancies. The dates for taking up these steps can be provided for on the pattern similar to filling of vacancies in some other services. Adherence to strict time schedule can help in ensuring timely filling of vacancies. In this view, all the State Governments, Union Territories and/or High Courts were directed to give suggestions regarding the time schedule to be fixed so that every year vacancies that may occur are filled. This Court also requested Mr. Vijay Hansaria, senior advocate, to assist the court." "9. We request the Chief Justice of each High Court to constitute a committee of two or three judges to monitor and oversee that timely selection and appointment of judicial officers is made. The Chief Justice is further requested to constitute a special cell in the name of "Selection and Appointment" in the High Court or under such other name as the learned Chief Justice may consider proper with an officer of the rank of Registrar for assisting the Committee and the Chief Justice for complying with the aforesaid time schedule." "10. The Chief Justice is further requested to constitute a special cell in the name of "Selection and Appointment" in the High Court or under such other name as the learned Chief Justice may consider proper with an officer of the rank of Registrar for assisting the Committee and the Chief Justice for complying with the aforesaid time schedule." "10. The Registrar of the aforesaid selection and appointment committee shall send to the Registrar General of this Court by 31st January, every year report as regards the filling up of vacancies with copies to Minister for Law and Justice in the Central Government and the Law Minister of the concerned State. The Registrar would also bring it to the notice of the Committee and the Chief Justice any deviation from the time schedule." 7. Per contra, learned counsel appearing for the High Court contended that neither the Rules, nor the on-line advertisement dated 4.7.2011 supports the case of the petitioner. Learned counsel brought to our notice that the last recruitment process to fill up 121 vacancies in the cadre of Civil Judge was initiated in the year 2009 vide advertisement dated 16.9.2009, and the process was completed on 19.7.2010. SCA/12616/2011 8/12 JUDGMENT Learned counsel brought to our notice that the petitioner was also one of the candidates in the said recruitment process but he could not qualify in the examination. The select list was declared only in July, 2010. The select list contained names of 121 candidates. A waiting list was also prepared containing names of 6 candidates. Result of two candidates, which was kept in sealed cover, was declared on 17.3.2011 and 25.3.2011, where-after the Government was moved to issue appointment orders. Counsel also brought to our notice that the waiting list of six names was recommended to the Government for appointment. Thus, till 16.5.2011, the waiting list was not operated and because of that, initiation of fresh recruitment process in the year 2010 was just not possible. Learned counsel relied on judgment of the Supreme Court in the case of Dr. Ami Lal Bhat v. State of Rajasthan and ors., (1997) 6 SCC 614 . 8. Thus, till 16.5.2011, the waiting list was not operated and because of that, initiation of fresh recruitment process in the year 2010 was just not possible. Learned counsel relied on judgment of the Supreme Court in the case of Dr. Ami Lal Bhat v. State of Rajasthan and ors., (1997) 6 SCC 614 . 8. Having heard learned counsel for the respective parties and having perused the relevant records and the provisions of Rules governing appointment of Civil Judges, we are of the view that the petitioner is not entitled to any relief for the reasons, which we shall record hereinafter. 9. Rule 7(c) of the Gujarat State Judicial Service Rules, 2005 provides as under:- "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 Tribe." 9.1 Also, in the Committee Meeting held on 28.6.2011, the High Court has fixed the age limit of the candidates as under:- "(i) A general category candidate must not have crossed the age of thirty five years (35 years) as on 30th July, 2011, 38 years in case of candidates belonging to Scheduled Caste, Scheduled Tribes, Socially and Educationally Backward Classes, physically handicapped and Ex-service men, whereas the candidates working in Court and Allied Departments must not have crossed the age of forty years (40 years) as on that date. xxx xxx xxxx Must have worked in Courts and other Allied Departments for at least five years as an employee and must possess a Degree in Law (Special) from any University recognized by law in India." 9.2 We have noticed that pursuant to the above decision, condition No.3 was in incorporated in the on-line advertisement dated 4.7.2011 to read as under:- "3. Age Limit: A candidate must not have crossed the age of 35 years and must not have completed as on the last date fixed for submission of online application 38 years of age, in the case of candidates belonging to Scheduled Castes or Scheduled Tribes or Socially & Educationally Backward Classes, declared as such by the Government of Gujarat, as well as Disabled Persons & Ex-servicemen. However, relaxation of 5 years i.e. upto 40 years in the upper age limit shall be granted to the eligible employees working in the Courts or other allied Departments. No other relaxation in upper age limit, shall be granted to them under any circumstances." 9.3 Reliance was placed by the learned counsel for the petitioner on the decision of the Supreme Court in the case of Malik Mazhar Sultan v. U.P Public Service Commission, to contend that if the recruitment process was initiated in the year 2010, he would have been eligible to apply. However, we have noticed that last recruitment process to fill up 121 vacancies in the cadre of Civil Judge was initiated in the year 2009 vide advertisement dated 16.9.2009, wherein the petitioner was also one of the candidates, who did not qualify in the examination and the process was completed on 19.7.2010. The select list containing names of 121 candidates was declared in July, 2010. A waiting list was also prepared containing names of six candidates and result of two candidates which was kept in sealed cover was declared on 17.3.2011 and 25.3.2011, whereafter the Government was moved to issue appointment orders. Thereafter, names of 6 candidates from the waiting list was also recommended to the Government for appointment. It appears that till 16.5.2011, the waiting list was not operated and because of that, initiation of fresh recruitment process in the year 2010 was not possible. Needless to say that unless and until the previous year's recruitment process is completed, a fresh recruitment process cannot be initiated. Therefore, there is hardly any merit in the petitioner's contention that High Court could have initiated a fresh recruitment process in May, 2010. 9.4 The contention of the learned Senior Counsel that petitioner is adversely affected because of the fact that advertisement for recruitment is issued later than the occurrence of the vacancy, and therefore, corresponding age relaxation should be given to him, cannot be accepted. In the case of Dr. 9.4 The contention of the learned Senior Counsel that petitioner is adversely affected because of the fact that advertisement for recruitment is issued later than the occurrence of the vacancy, and therefore, corresponding age relaxation should be given to him, cannot be accepted. In the case of Dr. Ami Lal Bhat v. State of Rajasthan and ors., (1997) 6 SCC 614 the Hon'ble Supreme Court while considering a similar contention raised by the petitioner that as on the date when vacancy occurred petitioner was within the maximum age prescribed by reference to the cutt-off date, and if the advertisement is delayed, his age should be considered with reference to the date of occurrence of vacancy, was negatived by observing in paragraph 11 as under:- "11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended." 10. In view of the aforesaid discussion, and in the absence of any merit in this petition, we are left with no other option but to reject the same. Petition is hereby accordingly rejected with no order as to costs. Petition rejected.