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2011 DIGILAW 928 (GAU)

Debapriya Datta v. Gauhati High Court

2011-11-24

B.D.AGARWAL, SUBHASIS TALAPATRA

body2011
JUDGMENT 1. The writ petitioners are herein challenging the legality of the Advertisement, dated 15.04.2003 issued by the Registrar, Gauhati High Court, Agartala for recruitment of Judicial Officers Grade-III. In addition to that the petitioners are also challenging the legality and vires of Tripura Judicial Services (12th Amendment) Rules, 2003, as published in Tripura Gazette dated 18.08.2003, whereby Rules 6 and 8 of the Tripura Judicial Service Rules, 1974 have been amended with retrospective effect. 2. Heard Mr. D.K. Biswas, learned counsel, appearing for the petitioners and Mr. S.M. Chakraborty, learned senior counsel, appearing for the respondent Nos. 1 and 2. We have also heard Mr. A. Ghosh, learned State counsel, appearing for the respondent No. 3. 3. We have also gone through the affidavit filed by the High Court. It may be mentioned that no affidavit has been filed on behalf of the State of Tripura. 4. The petitioners case is that as per Tripura Judicial Service Rules, 1974 as was existing in the month of April, 2003, candidates having within the age group of 25 years to 40 years, as on 1st January of the year in which the examination was to be held, were eligible for recruitment to the post of Grade-III Judicial Officers. However, in the Advertisement, dated 15.04.2003, the outer age of the candidates was fixed at 35 years. 5. Sri D.K. Biswas, learned counsel for the petitioner submitted that in view of the Advertisement, the petitioners could not apply for their selection and they were deprived of their legal right to appear in the selection test. Sri Biswas also submitted that since the advertisement was de horse to the Service Rules, it should be struck down. The learned counsel for the writ petitioners has submitted that by the impugned advertisement the age of the law graduates for their selection to Grade-III officers was reduced to 35 years arbitrarily. It had been also provided in the advertisement that the law graduates need not have practice as advocate. As off-shot, it has been pointed out that prior to the Amendment, two sources of recruitment were not subject to eclipse under any circumstances. One source was recruitment by the High Court from the law graduates having three years' practice and the other source was recruitment of law graduates directly by the Tripura Public Service Commission. As off-shot, it has been pointed out that prior to the Amendment, two sources of recruitment were not subject to eclipse under any circumstances. One source was recruitment by the High Court from the law graduates having three years' practice and the other source was recruitment of law graduates directly by the Tripura Public Service Commission. Now in case of failure by the latter, the former is authorized to recruit against those vacancies by the amended Rule 6 of the said Rules. 6. For ready reference, Rule 8 of 1974 Service Rules as well as the amended Rule 8 are reproduced below :- Pre-amendment Rule 8 8. A candidate for recruitment to the post in Grade III shall satisfy the following conditions, besides the general conditions laid down under rule 9:- (i) the age of the candidate for examination shall not be less than 25 years and more than 40 years on the first January of the year in which the examination is held; (ii) the age of the candidate for selection from the Bar shall not be less than 25 years and more than 40 years on the first January of the year in which the selection is held; (iii) a candidate for the post must be a graduate in law of any University recognized by the Government for the purpose of these rules or a Barrister-at-law; (iv) that a candidate for examination or a candidate for selection from Bar for recruitment to the post in Grade-III must have practiced at least for 3 years in any Court. Amended Rule 8 8. Age and educational qualification for appointment in Grade III:- A candidate for appointment to Grade III shall satisfy the following conditions, besides general conditions laid down in rule 9:- (i) The age of the candidate shall not be more than 35 (thirty five) years with relaxation by 3 (three) years for SC/ST candidates on the 1st January of the year of recruitment. (ii) He must be a graduate in law of any University recognized by the Government for the purpose of these rules or a Barrister-at-Law and need not be an advocate of any standing practice. 7. In the affidavit of respondent Nos. (ii) He must be a graduate in law of any University recognized by the Government for the purpose of these rules or a Barrister-at-Law and need not be an advocate of any standing practice. 7. In the affidavit of respondent Nos. 1 and 2, it has been stated that prior to advertising the posts, the State Government sought to amend the Service Rules, 1974 and a draft Rules were sent to the High Court for consultation. Thereafter, amended Rules were approved by the High Court and sent for Notification to the Government much prior to the publication of the impugned advertisement. The respondents have pleaded that the High Court reasonably concluded and presumed that the State published the amended Service Rules and for such reasons, the impugned Notification was published. However, the fact remains that the amendment Notification was published only on 18.08.2003 with retrospective effect from 01.01.2003. 8. We noticed that the writ petition was filed on 06.06.2003 wherein the Advertisement was issued on 15.04.2003. We have already mentioned earlier that the Notification, amending Rule 8 was published on 18.08.2003, during the pendency of the writ petition. Learned counsel for the writ petitioners submitted that it was unfair of the part of the State to amend the Rules during the pendency of the writ petition and that to give retrospective effect. 9. We are unable to accept the proposition of the learned counsel for the petitioners that there was any mala fide or unfairness on the part of the High Court or at the level of the State Government inasmuch as the process for amendment of the Rules was initiated much prior to the publication of the Advertisement. As per the statements made in the affidavit-in-opposition of the respondent Nos. 1 and 2, the draft Rules were prepared in the year 2002 itself. It was coincidence that the Notification of Amendment was published only after the vacancies were notified on 15.04.2003. Had there been any mala fide intention on the part of the respondents to deprive a class of the law graduates from competing in the same process, the amendment could have been carried out immediately before issuing the advertisement. 10. However, that is not the case. We have already mentioned earlier that the consultation process begun long back and the State Government might not have any information or knowledge about the issuance of the Advertisement on 15.04.2003. 11. 10. However, that is not the case. We have already mentioned earlier that the consultation process begun long back and the State Government might not have any information or knowledge about the issuance of the Advertisement on 15.04.2003. 11. As could be gathered from the 1974 Service Rules, the law graduates in between the age group of not less than 25 years and not more than 40 years as on 1st January of the recruitment year were eligible for selection as Grade-III Judicial Officers. The impugned Advertisement, dated 15.04.2003, however, restricted the age of eligible candidates up to 35 years. This was out and out beyond the Service Rules as existed at the time of publishing the impugned advertisement. Not only that the impugned Advertisement is also not sustainable on the other ground. As per the Advertisement even the fresh law graduates were also allowed, without requisite practice as advocate, to appear in the examination. This accommodation as indicated in the advertisement was contrary to provisions of the existing rules and hence is unsustainable. 12. For the reasons stated herein, we declare that Advertisement, dated 15.04.2003 was de horse the Rules. Neither the impugned Advertisement was stayed by this Court nor was there any interim order in favour of the writ petitioners, allowing them to take part in the examination. In the mean while, the recruitment process is already over and as such, there is no scope to give any effective relief to the writ petitioners. 13. As Mr. D.K. Biswas, learned counsel appearing for the petitioners did not press the challenge as to legality and vires of the Tripura Judicial Services (12th Amendment) Rules, 2003 at hearing, we do not intend to examine the same. 14. With the aforesaid observations, the writ petition stands disposed of.