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2019 DIGILAW 465 (GUJ)

Avinash Detha v. Registrar (Recruitment)

2019-04-25

N.V.ANJARIA

body2019
JUDGMENT : N.V. ANJARIA, J. Whether petitioner who works as Deputy Manager (Law) in the real estate department of a Bank could be treated as eligible to apply and compete for the post of Civil Judge, when the requirement is that the candidate must be working “in the courts or other allied departments” – is the moot question posed for consideration in this petition. 2. Rule 7 of the Gujarat State Judicial Service Rules, 2005 deals with the requirement and eligibility for selection to the cadre of Civil Judges. Sub-rule (1) says that the recruitment to the cadre of Civil Judges shall be made on the basis of the aggregate marks obtained in a competitive examination conducted by the High Court. Clause (a) of sub-rule (2) of Rule 7 provides that a candidate must possess a degree in law from the university established by law in India. Sub-clause (c) mentions about upper age limit. 2.1 It is clause (b) of sub-rule (2) of Rule 7 as substituted by Gujarat State Judicial Services (Amendment) Rules, 2007, which is the subject matter of controversy. The text thereof reads as under. “7(2)(b) – must be practicing as an Advocate in Courts of Civil and/or Criminal Jurisdiction on the last date fixed for receipt of application; or must be working in the Courts or other allied Departments on the last date fixed for receipt of application.” 2.2 A close reading of Rule 7(2)(b) of the Gujarat State Judicial Service Rules, 2005 (hereinafter referred to as “the Rules”) would indicate that the Rule has its two parts. In the first part, it provides that a candidate must be practicing as an advocate in the civil or criminal court. Alternatively, it is mentioned that the candidate must be working in the courts or other allied departments on the last date fixed for receipt of application. 2.3 In the advertisement published on 21st January, 2019 for the recruitment of the Civil Judges, based on the aforesaid Rule 7, essential qualification required in a candidate were mentioned as under. “2. Essential Qualifications : (I) A prospective Candidate must possess a Degree in Law from a University recognized by law in India & - - must be practicing as an Advocate in Courts of Civil and / or Criminal Jurisdiction on the last date fixed for submission of On-line Application. “2. Essential Qualifications : (I) A prospective Candidate must possess a Degree in Law from a University recognized by law in India & - - must be practicing as an Advocate in Courts of Civil and / or Criminal Jurisdiction on the last date fixed for submission of On-line Application. Candidates, who have passed the Degree in Law from the academic year 2009-2010 and onwards, must have also passed the All India Bar Examination, in order to be considered as eligible for being termed as a Practicing Advocate. OR - must be working in the Courts or other Allied Departments on the last date fixed for receipt of applications. [See instruction at Item No.10(7) Note: Candidates working in the Courts or other Allied Departments, must be holding LL.B. Degree of 03 Years' Course or 05 Years' Course from the recognized University.” 2.4 Instruction at Item No.10(7) was as under. “10(7) Employees working in the following Departments are considered as 'Employees of Allied Departments': (i) High Court of Gujarat or any Court, subordinate to it. (ii) Office of the Government Pleader, High Court of Gujarat. (iii) Office of the Government Pleader, City Civil Court, Ahmedabad. (iv) Office of Legal Section of the Legal Department, Sachivalaya, Governmentof Gujarat, Gandhinagar.” 2.5 The “other allied departments” is the subject matter of focus, since the petitioner contends that the Bank where he has been working as Deputy Manager (Law) should be treated as an allied department to render him eligible. 3. The petitioner wanted to become a Civil Judge. His on-line application was not accepted on the ground that the petitioner did not fall within the purview of eligibility prescribed. The petitioner prayed for issuance of writ of mandamus to hold and declare that the petitioner was eligible for participating in the recruitment process for the appointment to the post of Civil Judge. It was prayed to permit the petitioner to fill up the application form. 3.1 The petitioner has stated that he is law graduate from Gujarat National Law University, Gandhinagar, having obtained B.A., LL.B. (Honrs.) degree in the year 2012. The petitioner was enrolled as advocate with Bar Council of Rajasthan on 14th July, 2012. The petitioner cleared All India Bar Examination, and came to be issued Certificate of Practice by the Bar Council of India. According to the petitioner, he practiced as an advocate. The petitioner was enrolled as advocate with Bar Council of Rajasthan on 14th July, 2012. The petitioner cleared All India Bar Examination, and came to be issued Certificate of Practice by the Bar Council of India. According to the petitioner, he practiced as an advocate. 3.2 Thereafter in the year 2018 the petitioner fared successful in the examination for recruitment of Specialised Cadre Officer in the State Bank of India. Since 24th September, 2018 the petitioner stands appointed and has been working as Deputy Manager (Law) in the real estate department of State Bank of India, HCST Branch, Indore, Madhya Pradesh. The petitioner sent a representation to respondent No.1 requesting for consideration of his case. As there was no response to the representation, this petition was instituted. 4. Learned advocate for the petitioner Mr.Jenil M. Shah submitted that the petitioner was a qualified person working as Deputy Manager (Law) in the Bank whose job-chart would indicate that he deals with all kinds of legal work including consultation and drafting. It was submitted that there was no reason not to include the Bank within the ambit of “other allied departments”. It was submitted that merely because the petitioner was not an employee of the departments specified in Instruction No.10(7) of the advertisement, his candidature could not have been out rightly rejected. He termed the decision on part of the respondents in restricting the categories of the 'allied departments' only to those mentioned in (I) to (iv) in the Instruction No.10(7) as unjust and arbitrary. It was submitted that any department where legal work was undertaken and where the duties performed by the employees relate to the field of law, ought to have been treated as an allied department so as to accept the candidature of the employee working in such department for the post of Civil Judge. 4.1 Learned advocate for the petitioner next submitted that in specifying the departments in Instruction No.10(7) and naming four categories amounted to unduly restricting the operation of the Rule. Referring to Rule 7(2)(b) of the Rules, it was submitted that the Rule does not specifically mention any department but speaks of 'other allied departments'. It was submitted that the Instruction in the advertisement travelled beyond the Rule so as to delimiting the departments. Referring to Rule 7(2)(b) of the Rules, it was submitted that the Rule does not specifically mention any department but speaks of 'other allied departments'. It was submitted that the Instruction in the advertisement travelled beyond the Rule so as to delimiting the departments. It was reiterated that the Bank where the petitioner was employed as Deputy Manager (Law) dealing with legal work of the Bank, should have been treated as an allied department and that the candidature of the petitioner was not liable to be rejected. Learned advocate for the petitioner sought to garner support for this submission by relying on the observations in Paras 21 to 25 of the decision of the Supreme Court in Union of India v S. Srinivasan [ (2012) 7 SCC 683 ] that the Rule must conform the provisions of statute and the rule making authority is not permitted to frame a Rule beyond the scope of the enabling provision. 4.2 Developing the arguments lucidly, learned advocate for the petitioner further submitted that the idea to be activated in recruiting to the post of Civil Judge, was to attract the best talent for the cadre. Rejecting the candidature of the petitioner, it was submitted, who, according to learned advocate for the petitioner, was a well-qualified and experienced candidate, by limiting the categories of the departments and thereby not treating the Bank as an allied department, where the petitioner was in legal branch, would defeat the object of appointing talented persons to the post. For bringing home this point, it was submitted that the words “other allied departments” should receive a purposeful interpretation and a practical approach. 4.3 Learned advocate for the petitioner thereafter proceeded to highlight the principle of purposive interpretation from decisions of the Supreme Court in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) v. Sri Seetaram Rice Mill [ (2012) 2 SCC 108 , Paras 46 to 52] and Kameshwar Singh Srivastava v. IV Addl. Dist. Judge, Lucknow [ AIR 1987 SC 138 , Para 5]. Learned advocate submitted on the basis of the said decisions that the Court must endeavour to interpret the statute so as to protect and advance the object and purpose of the enactment. Dist. Judge, Lucknow [ AIR 1987 SC 138 , Para 5]. Learned advocate submitted on the basis of the said decisions that the Court must endeavour to interpret the statute so as to protect and advance the object and purpose of the enactment. 4.4 Thereafter pressed into service on behalf of the petitioner, was the decision in Bharat Heavy Electricals Limited v. Globe Hi-Fabs Limited [ (2015) 5 SCC 718 ] for submitting that rule of ejusdem generis was not to be applied in all situations and that in the present case, it would have no application. By referring to the observations of the Supreme Court in State of Uttar Pradesh v. C. Tobit [ AIR 1958 SC 414 , Para 4] as well as on decision in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate [ AIR 1958 SC 353 , Para 9], learned advocate for the petitioner highlighted the principle of harmonious construction. 4.5 Next relied on was the decision of the Division Bench of this Court in Hardik Bharatbhai Trivedi v. State of Gujarat [ 2017 (4) GLR 2857 ] wherein the unamended Rule 7(2)(b) of the Rules was questioned for its vires and the Division Bench observed therein that all law graduates after the completing degree in law, would constitute a single class for the purpose of recruitment to the post of Civil Judge. It was held that the Rule to the extent providing for requirement of five years experience by the candidate while serving in the courts or allied departments was held to be discriminatory. 4.6 On the other hand, learned senior advocate Mr.Shalin Mehta assisted by learned advocate Mr.Hemang Shah on behalf of the respondent relied on the affidavit-in-reply. It was submitted that the word 'other allied departments' in Rule 7(2)(b) is used in conjunction with the word 'courts'. It was sought to be demonstrated as to how the different categories in Instruction No.10(7) in the advertisement would conform to be the 'allied departments' to the 'courts'. As regards the Legal Department of the State Government, it was submitted that it is associated with the advising the State Government on the matters filed against the State Government in the High Court of Gujarat and other courts. As regards the Legal Department of the State Government, it was submitted that it is associated with the advising the State Government on the matters filed against the State Government in the High Court of Gujarat and other courts. It was submitted that all the categories mentioned in the Instruction have the close association with the 'courts' in accordance with the mandate of the language of the Rule. It was submitted that comparing an officer employed in the Legal Department of the Secretariat with an officer in the State Bank of India is like comparing two different class. 4.7 It was further submitted by learned senior advocate that Civil Judges are expected to be familiar with the court work and court procedure. It was further submitted that the prospective candidates working in the courts or office of the Government Pleader, High Court of Gujarat or City Civil Court or Legal Department of the Secretariat or in the High Court have such familiarity, which would not be true for the employees working in the Legal Department elsewhere. It was thus elaborated that there is rational connection for the providence of the categories mentioned in Instruction No.10(7) of the advertisement as the object is to have only those employees associated with the courts or who are familiar with the court work to apply for the post of Civil Judges. It was also submitted that by categorising the departments as allied departments, the process of selection is made transparent and fairer. 5. Recapitulating the requirement in Rule 7(2) (b) of the Rules, an employee who works in the courts or other allied departments on the date of application is treated eligible. Corresponding to this Rule, advertisement contained Instruction No.10(7) providing that the employees working in the departments as mentioned would be considered as employee of the allied departments. Four departments were categorised as departments allied to the court. The first is High Court or any courts subordinate. Second is office of the Government Pleader, High Court of Gujarat. The third is the office of the Government Pleader, City Civil Court, Ahmedabad. The fourth is office of Legal Section or Legal Department, Government of Gujarat. Four departments were categorised as departments allied to the court. The first is High Court or any courts subordinate. Second is office of the Government Pleader, High Court of Gujarat. The third is the office of the Government Pleader, City Civil Court, Ahmedabad. The fourth is office of Legal Section or Legal Department, Government of Gujarat. Whether the petitioner serving as a Deputy Manager (Law) in a Bank could be said to be holding eligibility and whether the Bank could be treated as 'allied department' contemplated in the Rule is the neat moot question for interpretation. 5.1 Before adverting to the interpretational aspect, the contention of the petitioner that the Instruction in the advertisement travels beyond the Rule and restricts the Rule, may be dealt with. The Rule speaks of the “courts and other allied departments”. This concept is manifested in Instruction No.10(7) in the advertisement for recruitment by mentioning four kinds of institutions/ departments treated as the allied departments for the purpose of Rule. The Instruction in the advertisement is a further explicitation of the Rule wherein the allied departments are named and listed in (i) to (iv). 5.2 It is well settled that selection of eligibility conditions is within the domain of the employer or the appointing authority. The judicial review may extend to the area only to see that the norms prescribed and the eligibility contemplated are relevant and that they have a rational nexus with the post concerned. In Chandigarh Administration v. Usha Kheterapal Waie [ (2011) 9 SCC 645 ], the Apex Court stated, “It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. (See J. Ranga Swamy v. Govt. of A.P. [ (1990) 1 SCC 288 ] and P.U. Joshi v. Accountant General [(2003) 2 SCC 632])”. (See J. Ranga Swamy v. Govt. of A.P. [ (1990) 1 SCC 288 ] and P.U. Joshi v. Accountant General [(2003) 2 SCC 632])”. 5.3 The categorisation of departments mentioned in Instruction No.10(7) are not inconsistent to the provision of Rule 7(2)(b) or incongruent in any way to the contemplation in the Rule regarding the 'allied departments'. The respondents were well within their realm of authority to mention the categories of allied departments. The Instruction No.10(7) cannot be said to be travelling beyond the arena or restricting the Rule 7(2)(b) of the Rules, rather it disseminated and explained the scope of the Rule by categorising what are the 'allied departments'. 6. The main plank of the submission was that the Bank where the petitioner has been working is in the managerial capacity in law branch was liable to be treated as 'the allied department' and consequently the petitioner deserved to be considered as employee of the allied department eligible and entitled to be the candidate for the post of Civil Judge. Therefore, now coming to the core question of interpreting the words 'allied departments' in the Rule, noticeably this group of words succeed the word 'courts'. It is true that the Rule reads as 'the courts or other allied departments'. Though the disjunctive word 'or' is used separating the word 'courts' and the group of words 'other allied departments', the junction and inter-linkage is reestablished by the word 'allied'. The word 'allied' becomes self-explanatory. The words 'ally', 'alliance', 'allied' etc., are the variants which all indicate the closeness in terms of the characteristics. The word 'allied' shows the state of connection or union with another. 6.1 As per the Law Lexicon by P. Ramanatha Iyer [1997th Edition], the meaning of the word 'alliance' is “the state of being allied'; combination for a common object, especially between sovereign State. The word 'allied' is suggestive of definite nexus. When the word 'allied' is used, the element of any kind of incongruity with other, with reference to which the word is used, would be absent. As instance, where the term 'allied offence' is used, it would mean that two or more crimes are such whereof the elements are so similar that commission of one is automatically the commission of the other. It is such kind of privity of meaning with other that word 'allied' creates. As instance, where the term 'allied offence' is used, it would mean that two or more crimes are such whereof the elements are so similar that commission of one is automatically the commission of the other. It is such kind of privity of meaning with other that word 'allied' creates. 6.2 In K.G. Vasanth Kumar v. State of Karnataka[1985 (Supp) SCC 714], the Supreme Court held that the meaning of the backward class has to be understood having regard to the other words preceding it. It was stated that, “It is a rule of statutory construction that where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. It is true that the rule of ejusdem generis or noscitur a sociis cannot be carried too far. But it is reasonable to apply the rule where the specific words refer to a distinct genus or category.” 6.3 The positioning of the word 'allied' in the group of words 'the courts or other allied departments' makes a marked difference in gathering the scope of meaning as to which could be the 'allied departments'. The departments are those departments which are 'allied' to or with the courts. Therefore, the meaning of the words 'allied departments' has to be deduced from the word 'court' which is the preceding word. The 'allied departments' would take colour for their meaning from the 'court' and the conceptual meaning of the word 'court'. 6.4 Dealing with the submission that a purposive interpretation should be applied to the words 'other allied departments', the ascertainment of the purpose of the provision is not an abstract process. The purpose of a provision, rule or condition prescribed, could not exist de hors the context in which any provision is made or any condition provided for. As such, the objective of carving purposive interpretation on one hand and placing contextual interpretation on the other, are similar. There may arise, however, rare cases, like the present one, wherein the bond between the context and the purpose have to be reconciled to be reinforced, in view of a shade of conflict between the two. A purpose canvassed for the provision without giving due regard to the context thereof, is a purpose in vain. Often, in interpretation and application of statute or rule, the context identified is the purpose achieved. A purpose canvassed for the provision without giving due regard to the context thereof, is a purpose in vain. Often, in interpretation and application of statute or rule, the context identified is the purpose achieved. 6.5 In State of W.B. v. Pranab Ranjan Roy [ (1998) 3 SCC 209 ] the Supreme Court was considering the interpretation and application of word 'appearance' in Section 167(5)(iii) in the Code of Criminal Procedure, 1973. Questioning the view taken by the Special Court and the High Court which had discharged the accused, it was the contention of the appellant – State before the Supreme Court that 'appearance' in Section 167(5) of the Cr.P.C. contemplated the surrender of the accused to the process for control of the court, whereas according to the respondent, an appearance through an advocate was enough for the purpose of Section. The Supreme Court allowed the appeal and held that while construing the word 'appearance' in Section 167(5) of the Cr.P.C., one has to look at the context in which it is used. It was stated that in other contexts the same word 'appearance' may have different connotations or different shades of meaning, such as in Order IX, Rule 6 and 8 of the Code of Civil Procedure where 'appearance' would include appearance by advocate. However, this principle cannot be carried forward to the situation in Section 167(5) of the Code. 6.6 It was stated by the Supreme Court that the words 'made his appearance' in that sub-section cannot be truncated from the particular context in which that expression is used. The Supreme Court observed in para 14 that “The words “made his appearance” in Section 167(5) are used along with the preceding words which by themselves form into a composite collection as thus: “From the date on which the accused was arrested or made his appearance.” It was stated that, “It is a salutary principle in the sphere of interpretation of statutory clauses that words in a provision must not be understood merely by their ordinary meanings dehors the context in which such words are used”. In that case, as the respondent had not made his physical appearance before the Special Judge at any time before the chargesheet was laid, it was held that there was no question of invoking to bar contemplated in Section 167(5) of the Cr.P.C. 6.7 In Central Bank of India v. State of Kerala [ (2009) 4 SCC 94 ], the Supreme Court expressed itself with following statement of law on the contextual interpretation, “Context often provides the key to the meaning of the word and the sense it carries. Its setting gives colour to it and provides a cue to the intention of the legislature in using it”. The Supreme Court quoted what Professor H.A. Smith said, from the work “Principles Of Statutory Interpretation” by G.P. Singh, which would be enriching to extract here-in-below. “'No word', says Professor H.A. Smith 'has an absolute meaning, for no words can be defined in vacuo, or without reference to some context'. According to Sutherland there is a 'basic fallacy' in saying 'that words have meaning in and of themselves', and 'reference' to the abstract meaning of words', states Craies, “if there be any such thing, is of little value in interpreting statutes' …. in determining the meaning of any word or phrase in a statute the first question to be asked is - “What is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase'. 6.8 In RBI v. Peerless General Finance and Investment Co. Ltd. [ (1987) 1 SCC 424 ], the Apex Court sated that, that interpretation is best which makes the textual interpretation match the contextual. It was beautifully observed that if the text of a statute or rule is texture, the context is what that gives the colour. It was advocated by the Supreme Court that the statute or rule must be looked at with the glasses of the statute maker or rule maker so as to see through the real context. It was beautifully observed that if the text of a statute or rule is texture, the context is what that gives the colour. It was advocated by the Supreme Court that the statute or rule must be looked at with the glasses of the statute maker or rule maker so as to see through the real context. In Central Bank of India (supra), the Supreme Court quoted to rely on the observations from English decision in R. (Westminister City Council) v. National Asylum Support Service [(2002) 4 All ER (HL)]. The following was the dictum on the contextual interpretation. “5. … The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it.” 6.9 In providing for the 'allied departments' in the Rule and mentioning the categories of such departments in the condition in the advertisement, a fine balance and blend between the context and the purpose is struck. The object is not just to invite any talent from anywhere but to have the proficiency and experience in the candidate in relation to the court, which is the contextual purpose. The categories of the other departments are so devised by the rule maker. 7. Applying the Mimansa Rules of interpretation, the principle known as Guna pradhan axiom would have a play. 'Guna' is the virtue or characteristic, and 'Pradhan' means the main or prominent. The interpretation must yield to a prominent idea and object in the provision or rule. This Mimansa Rule says that if the word or sentence purporting to express a subordinate idea, when clashes with the principal idea, the subordinate must be adjusted to the principal. In the present case for interpretation, the 'other allied departments' would receive their Guna from the concept which is Pradhana, that is the courts. Securing Samanjasya is also applied as an interpretational cannon in the Mimansa Rules. A Samanjasya is always endeavoured to be maintained in applying a statute, rule or condition where the provision is to be interpreted either in respect of it possible ambiguity or when it needs to be considered for the precisional scope and ambit in its operation to sub serve the underlying purpose. 8. A Samanjasya is always endeavoured to be maintained in applying a statute, rule or condition where the provision is to be interpreted either in respect of it possible ambiguity or when it needs to be considered for the precisional scope and ambit in its operation to sub serve the underlying purpose. 8. The decisions pressed into service by learned advocate for the petitioner stood true only for the legal proposition laid down therein. None of the decisions could be applied to the facts of the case to come to the rescue to the petitioner to seek relief. The decision in Hardik Bharatbhai Trivedi (supra) was in relation to the unamended rule, in which case the challenge was in respect of the provision of requirement of five years' working. That decision therefore involved a distinct issue altogether and all the observations therein operated in that context and differently so as to have no bearing on the present controversy. 9. As delineated hereinabove, Rule 7(2)(b) of the Gujarat State Judicial Service Rules, 2005 read with Instruction No.10(7) in the advertisement would require to be interpreted in its true context. The context is the 'courts' and the purpose is to have a Judge selected and appointed in the court. The candidate when appointed, would act as a Presiding Officer in the court and would conduct the proceedings of the court. Amongst the institutions in a democratic set up, the institution of courts has its own identity and significance. The courts, at all levels, because of their special functional feature and cultural characteristics, constitute a class by itself. 9.1 The contemplation of the 'allied departments' when mentioned in the context of the word 'courts', it cannot mean to apply any and sundry department. The 'allied departments' must have the reference to the conceptuality of the court. The categories in Instruction No.10(7) are mentioned accordingly. It would indeed not include Bank where the petitioner is a Deputy Manager in the legal branch. The petitioner could not be treated as employee working in the 'allied department' within the meaning of the Rule 7(2)(b) of the Rules. 10. In view of the above discussion and the reasons, no relief to the petitioner could be booked in the present petition. The petitioner could not be treated as employee working in the 'allied department' within the meaning of the Rule 7(2)(b) of the Rules. 10. In view of the above discussion and the reasons, no relief to the petitioner could be booked in the present petition. The petitioner could not be said to be eligible for participating in the recruitment process for appointment to the post of Civil Judge pursuant to advertisement published by the respondents bearing No.RC-0719/2019. 11. The petition stands meritless and is hereby dismissed. Notice is discharged. Interim relief is vacated. FURTHER ORDER At this stage, learned advocate for the petitioner requested the Court to continue the interim relief for sometime so as to enable the petitioner to approach higher forum. In the facts and circumstances of the case, the providence in order dated 28th February, 2019 which was by way of ad-interim relief that in the event the petitioner succeeds in the petition, the date for making application for the petitioner shall stands suitably extended, will continue to operate till 03rd May, 2019.