Bombay High Court
Mr Prashant P Giri vs The State Of Maharashtra on 7 May, 2010
Author: R M Savant
Bench: A M Khanwilkar, R M Savant
1
Lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8952 OF 2009
1 Mr Prashant P Giri, ]
Age 24 years, occ. Advocate ]
Residing at "Pushpgiri Niwas" ]
Darga Road, Bank Colony, ]
Parbhani - 431 401 ]
]
2 Mr.Rajhans P Survase ]
Age 25 years, Occ. Advocate ]
Residing at "Survase Nivas"
ig ]
Phule Nagar, Sailu ]
Taluka - Sailu, District-Parbhani ]
]
3 Mr.Vinod R Paricharak, ]
Age 31 years, Occ. Advocate ]
Residing at Shivaji Nagar ]
Solapur Road, At/Post ]
Madha, Taluka Madha, ]
District - Solapur ]
]
4 Mr.Pathan Firdos Musakhan, ]
Age 26 years, Occ. Advocate ]
Residing at Near Gauspura ]
Masjid Rabel Nagar, Nanded ]
Road, Latur, District - Latur ]
]
5 Ms.Vidya Vijayrao Supekar, ]
Age 26 years, Occ. Advocate ]
Residing at C/o. V U Supekar, ]
"Dwarka", Ram Nagar, Darga ]
Road, Parbhani, District Parbhani ]
]
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2
6 Mr.Satav Pratap Rajaram ]
Age 25 years, Occ : Advocate ]
Residing at Laul, Taluka Madha ]
District Solapur ]
]
7 Ms.Meera A Aduke ]
Age 29 years, Occ. Advocate ]
Residing at ]
Taluka - Miraj, District Sangli ]... Petitioners
Versus
1 The State of Maharashtra ]
Through its Secretary ]
Law & Judiciary Department
ig ]
Mantralaya Mumbai ]
]
2 The High Court of Bombay ]
Through its Registrar General ]
Fort Mumbai 400 001 ]
]
3 The Maharashtra Public Service ]
Commission, Through its Deputy ]
Secretary, Bank of India Building ]
IIIrd Floor, M G Road, Hutama ]
Chowk, Mumbai 400 001 ]... Respondents.
WITH WRIT PETITION NO.3155 OF 2009 1 Bar Association, Karjat ] Dist.Raigad, ] Shri Satish Dharma Dayre ] President, Age 27 years ] R/at Manivali, Taluka Karjat ] Dist Raigad ] ::: Downloaded on - 09/06/2013 15:56:15 ::: 3 2 Panvel Bar Association, ] Shri Suresh Pandurang Khanavkar ] President ] Age : 55 years, R/at Panvel. ] ] 3 Shri Uday Sonavane ] Advocate ] Age 32 years, R/at 212, Nav Visava] Society, Dattatraya Colony, Milind ] Nagar, Kalyan(W), Dist.Thane ] ] 4 Shri Roshan Khobragade, ] Advocate, ] Age : 32 yrs. r/at : 306 ig ] Ravi, A1 Lokgram, Kalyan(E) ] Dist. Thane ] ] 5 Shri Vijay Manohar Mundhe ] Age 28 yrs. R/at : Devi Chandra ] Krupa Bldg. Ganesh Chowk, ] Bhatwadi, Kisan Nagar No.3 ] Thane (W) ] ] 6 Shri Shantaram Shankar Datar ] Advocate, Age : 66 Yrs. ] R/at : Neelanth dhara, F-3/209 ] Adharwadi Road, Kalyan (w) ] ] 7 Shri Suhas Sampat Telang ] Age 33 yrs. ] Advocate, R/at Samartha Nagar ] Nandivali, Dombivli (W) ]... Petitioners.
Versus 1 Maharashtra Public Service ] Commission, Through its Member ] ::: Downloaded on - 09/06/2013 15:56:15 ::: 4 Secretary, Having its office at ] 3rd Floor, Bank of India Building ] Mahatma Gandhi Road, ] Fort, Mumbai-2 ] ] 2 Bar Council of Maharashtra and ] Goa Through its President, ] High Court Annexed Building ] Mumbai 400 032 ] ] 3 The State of Maharashtra ] Through Secretary ] Of Law and Justice ] Mantralaya, Mumbai ]... Respondents.
ig WITH PUBLIC INTEREST LITIGATION NO.84 OF 2009 Marathi Bhasha Sanrakshan & ] Vikas Sanstha ] An NGO, registered under the ] The Bombay Public Trust and ] The Society Registration Act-1860 ] Thr'its Jt. Sec. Mr.Santosh Laxman ] Agre. Having its office at ] Gr. Floor, Vaidya Building ] Behind IDBI Bank, Near St.John ] Baptist High School, Thane-400601]... Petitioner versus 1 Maharashtra Public Service ] Commission, Through its Member ] Secretary, 5th Floor, Bank of India ] Building, Hutama Chowk ] Mumbai - 400 23 ] ] ::: Downloaded on - 09/06/2013 15:56:15 ::: 5 2 Registrar General ] High Court of Judicature ] Mumbai 400 032. ] ] 3 State of Maharashtra ] Through its Principal Secretary ] of Law & Judiciary Department ] Mantralaya, Mumbai-400 032 ]... Respondents.
WITH WRIT PETITION NO.4683 OF 2008 Raju S/o Tukaram Ingle, ig ] Age 30 years, Occ. Legal Practitioner, ] R/o Near S.P.Office, Hingoli ] Taluka Hingoli, District Hingoli ] versus 1 The State of Maharashtra ] Through its Secretary ] Law & Judiciary Department ] Mantralaya Mumbai ] (Copy to be served on the Govt. ] Pleader High Court Bench at ] Aurangabad ] ] 2 The Maharashtra Public Service ] Commission, Through its Deputy ] Secretary, Bank of India Building ] 3rd Floor, M G Road, Hutama ] Chowk, Mumbai 400 001 ] ] 3 The High Court of Bombay ] Through its Registrar General ] Fort Mumbai ]... Respondents.
::: Downloaded on - 09/06/2013 15:56:16 ::: 6 WITH WRIT PETITION NO.5944 OF 2008 Mr.Vasant S/o.Shriramji Yadav ] Age 25 Yrs. Occ. Advocate, ] R/o Khadka, Tq.Sonpeth ] District Parbhani ]..Petitioner versus 1 The State of Maharashtra ] Through its Secretary ] Law & Judiciary Department ] Mantralaya Mumbai ] (Copy to be served on the Govt. ig ] Pleader High Court Bench at ] Aurangabad ] ] 2 The Maharashtra Public Service ]
Commission, Through its Deputy ] Secretary, Bank of India Building ] 3rd Floor, M G Road, Hutama ] Chowk, Mumbai 400 001 ] ] 3 The High Court of Bombay ] Through its Registrar General ] Fort Mumbai ]... Respondents.
WITH WRIT PETITION NO.6200 OF 2008 Amitsingh S/o Ranjitsingh Mohane ] Age 28 years. Occ : Practicing Lawyer ] R/o Sambhaji Nagar, Bhokardan Road ] Jalna, Dist. Jalna ].. Petitioner versus ::: Downloaded on - 09/06/2013 15:56:16 ::: 7 1 The State of Maharashtra ] Through : The Secretary ] Law & Judiciary Department ] Mantralaya Mumbai-32 ] (Copy to be served on Government] Pleader High Court of ] Judicature Bombay ] Bench at Aurangabad ] ] 2 The Registrar General ] High Court of Bombay ] ] 3 The Secretary, ] Maharashtra Public Service ] Commission, ig ] rd Bank of India Building 3 Floor ] Mahatma Gandhi Marg, ] Hutatma Chowk, Mumbai-1 ]... Respondents.
WITH
WRIT PETITION NO.1751 OF 2009
Nandkumar S/o Tukaram Shelke ]
Age 37 years, Occupation : Nil ]
R/0 Laxshmi Colony, Pradnya Nagar ]
Cantonment, Aurangabad ].. Petitioner
versus
1 The State of Maharashtra ]
through the Secretary ]
Law and Judiciary Department ]
Mantralaya, Mumbai ]
]
2 The District and Sessions Judge ]
District Beed. ]... Respondents.
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WITH
WRIT PETITION NO.1752 OF 2009
1 Padmabhushan S/o Pandurang Paratwagh] Age 27 years, Occ Legal Profession ] R/o. H. No.A-22/10, Shivaji Nagar, ] th Cidco, 11 Scheme Aurangabad ] ] 2 Siddharth S/o Vishvanath Pandit ] Age 24 years, Occ : Legal Profession. ] R/o At Post Jikthan, Tq. Gangapur ] District Aurangabad ] ig ] 3 Virendra s/o Vasudeorao Jahagirdar ] Age 26 years, Occ : Legal Profession ] R/o. "Vatsalya" H.No.2-4-17 ] Mills Colony, Kotwalpura ] Aurangabad. ] ] 4 Kiran S/o. Bhaskar Kulkarni ] Age : 25 years, Occu : Legal profession ] R/o. N-11, F-12/7, Navjeevan Colony ] Shopping Centre, Hudco, Aurangabad ] ] 5 Kum. Aditi d/o Abhay Godbole ] Age 24 years, Occu : Legal Profession ] R/o. C/o. Madhav Soman ] Brahmin Galli, Begumpura ] Aurangabad ] ] 6 Vikas s/o Balkrishnarao Deshmukh ] Age : 24 years, Occu; Legal Profession. ] R/o Joshi Galli, Majalgaon ] District : Beed ]... Petitioners ::: Downloaded on - 09/06/2013 15:56:16 ::: 9 versus 1 The State of Maharashtra ] Through its Secretary ] Law & Judiciary Department ] Mantralaya Mumbai-400032 ] ] 2 The High Court of Bombay, ] Through its Registrar General ] Fort, Mumbai 400 001. ] ] 3 The Maharashtra Public Service ] Commission, Through its Deputy ] Secretary, Bank of India Building ] IIIrd Floor, M G Road, Hutama ] Chowk, Mumbai 400 001 ig ]... Respondents.
WITH
WRIT PETITION NO.1784 OF 2009
1 Shaikh Asphak Taher ]
Age 26 years, Occ Advocacy ]
R/o Naigaon, Post.Savangi ]
Tq.Dist.Aurangabad ]
]
2 Balraj Ram Reddy ]
Age 26 years Occ Advocacy ]
R/o. Padampani Colony ]
Railway Station Road, Aurangabad] Tq.Dist.Aurangabad. ].. Petitioners.
versus
1 The State of Maharashtra through]
Law & Judiciary Department ]
Mantralaya Mumbai ]
(Copy for respondent No.1 ]
to be served on the Govt. ]
Pleader High Court Bench at ]
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10
Aurangabad ]
2 The Hon'ble High Court of Bombay]
through its Registrar General ]
Fort, Mumbai. ]
]
3 The Maharashtra Public Service ]
Commission, Through its Deputy ] Secretary, Bank of India Building ] 3rd Floor, Mahatma Gandhi Road ] Fort, Mumbai ]... Respondents.
WITH
WRIT PETITION NO.1785 OF 2009
1
Asmita d/o Eknath More ]
Age 27 years, Occ Legal Profession] C/o Eknath More, Plot No.13 ] Pratibha D.Ed College, Lokmitra ] Nagar, Purna Road, Nanded ] ] 2 Balaji s/o Atmaram Panchal ] Age 26 years, Occ Legal Profession] C/o. Yashoda Niwas, Swati Nagar ] Parali Vaijnath, Tq.Parli ] Dist.Beed ].. Petitioners.
versus
1 The State of Maharashtra ]
Through its Secretary ]
Law & Judiciary Department ]
Mantralaya Mumbai ]
2 The High Court of Bombay ]
Through its Registrar General ]
Fort Mumbai-400 001 ]
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]
3 The Maharashtra Public Service ]
Commission, Through its Deputy ] Secretary, Bank of India Building ] III Floor, M G Road, Hutama ] Chowk, Mumbai 400 001 ]... Respondents.
WITH
WRIT PETITION NO.1786 OF 2009
Jayanti d/o Anantrao Choudhari ]
Age 26 yrs. Occ Advocacy ]
r/o Taroda (Bk.), Tq.And Dist.Nanded ig ]... Petitioner.
versus
1 The State of Maharashtra ]
Through Ministry of ]
Law & Judiciary Department ]
Mantralaya Mumbai ]
(Copy for respondent No.1 to be ]
served to the Govt. Pleader, ]
High Court of Bombay Bench at ]
Aurangabad ]
2 The Hon'ble High Court of Bombay]
Through its Registrar General ]
Fort Mumbai ]
]
3 The Maharashtra Public Service ]
Commission, Through its Deputy ] Secretary, Bank of India Building ] 3rd Floor, Mahatma Gandhi Road ] Fort, Mumbai ]... Respondents.
::: Downloaded on - 09/06/2013 15:56:16 ::: 12 WITH WRIT PETITION NO.1787 OF 2009 1 Pankaj s/o Manmohan Bidada ] Age 27 years, occup.Advocate ]
r/o. Main Road Kallam, Tq.Kallam] Dist.Osmanabad ] ] 2 Pankaj s/o Bakuldas Deshpande ] Age-26 years Occup. Advocate ] R/o Sneha Nagar H.No.232 ] Vasama Road, Parbhani, ] Dist.Parbhani ]... Petitioners.
versus
1 The State of Maharashtra ]
Through its Secretary ]
Law & Judiciary Department ]
Mantralaya Mumbai-32 ]
(Copy served through the ]
Government Pleader High Court ]
Aurangabad) ]
]
2 Maharashtra Public Service ]
Commission, Head Office- ]
State Bank of India Building ]
3 Floor, MGM Road, ]
For Mumbai-2 ]... Respondents.
WITH
WRIT PETITION NO.1788 OF 2009
1 Saifuddin Bashabhai Shaikh ]
Age 27 years, Occu -Student ]
R/o. Mohite Galli, Solapur Road ]
Tq. & Dist. Osmandaba ]... Petitioner.
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Versus
1 The State of Maharashtra ]
Copy to be served on G.P.High ]
Court of Bombay Bench at ]
Aurangabad ]
]
2 Maharashtra Public Service ]
Commission ]
Building of Bank of India ]
3rd Floor, Mahtma Gandhi Road ]
Fort, Bombay-1 ]... Respondents.
ig WITH
WRIT PETITION NO.1789 OF 2009
1 Pravin S/o Rajendra Atre ]
Age 26 years, Occu -Student ]
R/o. S R T Quarters, Near AIR ]
Tq. & Dist. Osmandaba ]... Petitioner.
Versus
1 The State of Maharashtra ]
Copy to be served on G.P.High ]
Court of Bombay Bench at ]
Aurangabad ]
]
2 Maharashtra Public Service ]
Commission ]
Building of Bank of India ]
3rd Floor, Mahtma Gandhi Road ]
Fort, Bombay-1 ]... Respondents.
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WITH
WRIT PETITION NO.1790 OF 2009
Mr.Vasant S/o. Shriramji Yadav ]
Age - 25 yrs. Occu Advocate ]
R/o. Khadka Tq.Sonpeth ]
Dist.Parbhani ]... Petitioner.
versus
1 The State of Maharashtra ]
Through its Secretary ]
Law & Judiciary Department ]
Mantralaya Mumbai ]
(Copy to be served on the Govt.
ig ]
Pleader High Court Bench at ]
Aurangabad ]
]
2 The Maharashtra Public Service ]
Commission, Through its Deputy ] Secretary, Bank of India Building ] 3rd Floor, M G Road, Hutama ] Chowk, Mumbai 400 001 ] ] 3 The High Court of Bombay ] Through its Registrar General ] Fort Mumbai ]... Respondents.
WITH
WRIT PETITION NO.9419 OF 2009
Prashant Vishwanath Suryawanshi ]
Age 26 years Adult Occ Advocate ]
Residing at Akhada Balapur ]
Pin Code 431 701 ]
Taluka Kalamnuri, Dist. Hingoli ]... Petitioner.
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Versus
1 The State of Maharashtra ]
Through Ministry of ]
Law & Judiciary Department ]
Mantralaya Mumbai ]
2 The High Court of Bombay ]
Through its Registrar General ]
Fort Mumbai-400 001 ]
]
3 The Maharashtra Public Service ]
Commission, Through its Deputy ] Secretary, Bank of India Building ] IIIrd Floor, M.G.Road ig ] Hutatma Chowk, Mumbai 400001 ]... Respondents.
WITH
WRIT PETITION NO.9437 OF 2009
Sarika Mahadev Waghole ]
age 25 years, Occupation Advocate ]
R/o. At Parinche, Tq. Purandar ]
Dist. Pune, Pin 412311 ]... Petitioner.
versus
1 The State of Maharashtra ]
Through its Secretary ]
Law & Judiciary Department ]
Mantralaya Mumbai ]
]
2 The High Court of Bombay ]
Through its Registrar General ]
Fort Mumbai-400 001 ]
]
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3 The Maharashtra Public Service ]
Commission, Through its Deputy ] Secretary, Bank of India Building ] IIIrd Floor, M.G. Road ] Hutatma Chowk, Mumbai-400001 ]... Respondents.
WITH
WRIT PETITION NO.2353 OF 2009
(ORIGINAL SIDE)
Nikhil Ranjan ]
An Indian Inhabitant of ]
Mumbai age about 29 years ]
residing at C/o Dadabhai ]
Building No.4, Room No.15,
ig ]
N M Joshi Marg, Mumbai 400 013. ]... Petitioner versus 1 The Maharashtra Public Service ] Commission, Through its ] Chairman, having its office at ] Bank of India Building ] 3rd Floor, M.G.Road, ] Fort, Mumbai - 400 001 ] 2 The Maharashtra Public Service ] Commission, Through its Dy. ] Secretary, having its office at ] Bank of India Building ] 3rd Floor, M.G.Road, ] Fort, Mumbai - 400 001 ] ] 3 The State of Maharashtra ] Through its Principal ] Secretary, Department of Law ] and Judiciary, Mantralaya, ] Mumbai - 400 032 ] ::: Downloaded on - 09/06/2013 15:56:16 ::: 17 ] 4 The Registrar General, ] High Court of Judicature at ] Bombay, Mumbai-400 032 ].... Respondents.
WITH
WRIT PETITION NO.990 OF 2009
1 Syed Laikh Baba s/o Mir Mumtaz Ali ]
Age 26 years Occ Legal Profession ]
R/o Yasmin Complex, 2nd floor ]
Opposite BMC Bank, City Chowk
ig ]
Aurangabad ]
]
2 Shaikh Imran Khan S/o Shaikh Yakub ]
Age 26 years, Occ Legal Profession ]
R/o. Silk Mill Colony ]
Behind Railway Station ]
Dist. Aurangabad ]... Petitioners.
Versus
1 The State of Maharashtra ]
Through its Secretary ]
Law & Judiciary Department ]
Mantralaya Mumbai-400 032 ]
]
2 The High Court of Bombay ]
Through its Registrar General ]
Fort Mumbai-400 001 ]
]
3 The Maharashtra Public Service ]
Commission, Through its Deputy ]
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Secretary, Bank of India Building ] IIIrd Floor, M.G. Road ] Hutatma Chowk, ] Fort Mumbai -400 001 ]... Respondents.
WITH
WRIT PETITION NO.1858 OF 2010
1 Nitinkumar s/o Chandrashekhar ]
Swami ]
Age 27 years, Occ Legal Profession] R/o "Prasad" Plot No.18, ] Gut No.91, ] West of Renuka Mata Mandir Gate] Beed ByPass Road, Satara Parisar ] Dist. Aurangabad ] ] 2 Madhukar S/o Ramchandra ] Vasumate ] Age 26, Occu : Legal Profession ] R/o. Vasant Nagar ] Dist. Nanded ] ] 3 Sheetal D/o. Vilas Salunke ] Age 24, Occ Legal Profession ] R/o Yashprabha Apartment, ] Flat No.4, Vishal Nagar, Garkheda ] Aurangabad ].... Petitioners.
versus
1 The State of Maharashtra ]
Through the Secretary, ]
Law & Judiciary Department ]
Mumbai ]
(Copy to be served on the GP, ]
for the State, at High Court, ]
Aurangabad) ]
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19
2 Deputy Secretary, ]
The Maharashtra Public Service ]
Commission, ]
Bank of India Building ]
IIIrd Floor, Mahatma Gandhi Rd ]
Fort, Mumbai-01 ] ]
3 The Registrar General ]
High Court of Judicature ]
of Bombay 400 032 ]... Respondents.
Mr.Uday Warunjikar for the Petitioner in WP 8952/09, 9419/09 Mr. A A Garge for the Petitioner in WP 3155/09 Mr. Ganesh Sovani for the Petitioner in PIL No.84/09 Mr. P S Patil for the Petitioner in WP No.9437/09 Mr. J G Reddy for the Petitioner in WP No.990 of 2009 Mr. Venkatesh Dhond with Mr. R D Rane for Respondent-High Court in WP Nos.8952/09, 1752/09, 1784/09, 4683/08 and 5944/08.
Mr. C R Sonawane, AGP, for the State. Mr. V S Gokhale, AGP for Respondent Nos.1 and 3 in WP Nos. 990/09 and 1858/10.
Mr. P S Dani for Respondent No.2 in PIL No.84 of 2009 None for the Petitioners in rest of the Petitions.
CORAM : A M KHANWILKAR &
R M SAVANT, JJ
Judgment reserved on : 15th April 2010 Judgment delivered on: 07th May 2010 JUDGMENT [PER R M SAVANT, J] Rule in all the Petitions and PIL. Rule made returnable forthwith and heard finally by consent of the parties.
::: Downloaded on - 09/06/2013 15:56:16 ::: 201. The above Writ Petition and the companion Writ Petitions as well as Public Interest Litigation lay a challenge to the Recruitment Rules to the post of Civil Judge, Junior Division and Judicial Magistrate First Class. The said challenge is especially to Rule 5.3(i) and 5.3(ii). In so far as, PIL No.84 of 2009 and Writ Petition No.3155 of 2009 are concerned the challenge to the said Rules is on the basis that though Marathi is declared as a language of the lower Courts, the said Rules do not provide for a paper in Marathi in the written examination. The advertisement issued pursuant to the Rules for filling the posts which were advertised on 17th December 2008 is also challenged on the ground that choice of answering the examination in Marathi has not been given.
2 In so far as challenge to the Rules is concerned, Writ Petition No.8952 of 2009 is treated as the lead matter and therefore the facts in the said writ petition would be cited for convenience sake.
::: Downloaded on - 09/06/2013 15:56:16 ::: 213 The Petitioners in the said writ petition are Law Graduates having obtained the degree of law from various universities in the State of Maharashtra viz. University of Pune, Shivaji University, Marathwada Tirth University. The Petitioners are qualified advocates and are registered with the Bar Council of Maharashtra and Goa. Some of the Petitioners have passed five year law course with 1st class. The Petitioners came across an advertisement issued by the Respondent No.3 - the Maharashtra Public Service Commission for the post of C.J.J.D and J.M.F.C. The examination for the said post was to be held in two stages, i.e. Preliminary Examination and thereafter all those who qualified in the Preliminary Examination would be permitted to appear in the Main Examination and only those who passed in the Main Examination were to be called for viva/voce/interview. The advertisement inter alia disclosed the scheme of selection. The said Scheme as mentioned herein above involved a written examination followed by ::: Downloaded on - 09/06/2013 15:56:16 ::: 22 viva-voce The qualifications for the said post mentioned in the advertisement were as under :-
4. Conditions of Eligibility :- Any one of the following A, B, C, D, E or F. A) For Advocate, Attorney or Pleader :-
Age :- As on 1st April, 2009 not less than 21 and not more than 35 years.
Qualification :-Candidate must hold a degree in law and must have practiced as an igAdvocate, Attorney or Pleader in the High Court or Courts Subordinates there to for not less than 3 years on 17th December, 2008.
Note :- In the case of Public Prosecutors, their service in that capacity will be taken as practice at the Bar.
OR
B) For fresh Law Graduates :-
Age :- As on 1st April 2009 not less than 21 and not more than 25 years.
Qualification :-
(i) Candidate must has secured the degree in law by passing all the examinations leading to the degree in the first attempt and,
(ii) Has secured in the final year examination of the degree in Law or in ::: Downloaded on - 09/06/2013 15:56:16 ::: 23 the case of candidate holding Masters Degree in Law in final year examination not less than fifty five percent marks, OR C) Members of ministerial staff to the High Court OR D) Members of ministerial staff to the Courts subordinates to High Court OR E) Members of staff working as Legal Assistant and above in the legal section of the Law and Judiciary Department in Mantralaya OR F) Members of ministerial Staff of the Office of the Govt. Pleaders attached to those court.
Age :- For C, D, E & F - As on 1st april 2009 not less than 21 and not more than 45 years provided such employees has put in minimum three years of service after obtaining degree in law."
By Notification dated 25th August 2008, the Governor of Maharashtra, made the rules known as the Maharashtra Judicial Service Rules 2008 (referred to for brevities sake as the Rules of 2008) regulating the recruitment to the said post of CJJD and JMFC in the Maharashtra Judicial Service wherein under Chapter III Recruitment Rule 5 prescribes the ::: Downloaded on - 09/06/2013 15:56:16 ::: 24 Method of Recruitment, Qualification and Age Limit. Rule 5.3
(d) & (e) relates to Knowledge of Marathi, reference to the said Rule would be made in the latter part of this Judgment.
4. The Preliminary Examination was held on 10th July 2009 in which all the Petitioners qualified for the Main Examination. Thereafter Main Examination was held on 30th September 2009 in which examination all the above Petitioners were successful. The Petitioners were given call letters for interview so as to remain present for interview on various dates between 6th October 2009 to 12th October 2009.
It is the case of the Petitioners that when the Petitioners entered the office of the Respondent No.3 for the interview, they were orally informed that they were not qualified to appear for the said examination and hence the Petitioners were not entitled to be called for interview.
The Petitioners in all the above Petitions have been disqualified either on the ground of being over age or ::: Downloaded on - 09/06/2013 15:56:16 ::: 25 disqualified on the ground of not obtaining degree in law by passing all the examinations leading to the degree in the first attempt.
It appears that the Petitioners were communicated that they were not fulfilling the eligibility condition as prescribed by the advertisement and therefore appearance of the Petitioners at the Preliminary Examination as well as Main Examination was in breach of the Rules.
5. Aggrieved by the action of the Respondent No.3 in disqualifying the Petitioners after they having passed the Preliminary Examination as well Main Examination that the Petitioners have filed the instant Petitions. In so far as PIL No.84 of 2009 and Writ Petition No.3155 of 2009 are concerned, the petitioners in the said proceedings seek to espouse the cause of Marathi vis-a-vis the said examination.
::: Downloaded on - 09/06/2013 15:56:16 ::: 266. On behalf of the Respondent No.2 an affidavit has been filed by Shri Sangitrao S Patil, the learned Registrar (Judicial) of this Court. The claim and contentions in the above Petitions have been dealt with in the said Affidavit in reply. The exception carved out in favour of the fresh law graduates has been justified and explained. The reasons for requirement of having passed the examinations leading to the degree of law in the first attempt has also been stated. As also the Petitioners' case based on Article 320(5) has been dealt with.
7. We have heard Mr.Uday Warunjikar, the learned counsel appearing for the Petitioners in Writ Petition No. 8952/09. On behalf of the Petitioners Mr.Uday Warunjikar led the arguments, supplemented by the arguments made by Shri Ganesh Sovani in PIL No.84 of 2009, Mr.A A Garge in Writ Petition No.3155 of 2009 and Mr.P S Patil in Writ Petition No.9437 of 2009.
::: Downloaded on - 09/06/2013 15:56:16 ::: 278. The submissions of the Petitioners in the above Petitions as well as the PIL can be segregated in two groups which are as follows :-
A] SUBMISSIONS AS REGARDS CHALLENGE TO RULES 5.3(i) and 5.3(ii) OF THE MAHARASHTRA JUDICIAL SERVICE RULES 2008 :-
i) That the said Rules of 2008, though have been made in consultation with the Maharashtra Public Service Commission have not been tabled in both the Houses of Legislature of this State, and therefore, the procedure as contemplated for framing the said Rules having not been followed, the said Rules cannot be implemented.
ii) That the Rules of procedure made by the Public Service Commission in exercise of powers under Article 320 of the Constitution of India have been made by following the procedure and would, therefore, prevail over the Rules of ::: Downloaded on - 09/06/2013 15:56:16 ::: 28 2008 made by the Governor under Article 234 of the Constitution of India.
iii) That the Rule 5.3.(i) applicable to fresh law graduate discriminates between two persons belonging to the same class, inasmuch as the person who has passed all the examinations leading to the degree of law in the first attempt is sought to be distinguished from the person who has passed LL B examination with 55% marks though he might have availed benefit of A.T.K.T. [allowed to keep terms] in the preceding examination leading to the examination for degree in law.
iv) If the object of the said Rule 5.3 is to facilitate the selection of a brilliant candidate, the same can be sub-served by the said Rule which provides that in the final year examination the candidate should have secured not less than 55% marks. The said object can be achieved without having resort to Rule 5.3(i).::: Downloaded on - 09/06/2013 15:56:16 ::: 29
v) That the candidate who has completed his degree of law within the period prescribed for the course should be held eligible notwithstanding the fact that the said candidate has not passed the semesters in the first attempt.
vi) That the candidates who have availed of the benefit of A.T.K.T. [allowed to keep terms] should be held to be eligible for the said post, if they fulfil the criteria mentioned in Rule 5.3(ii).
vii) Since the screening test by way of preliminary examination and thereafter a main examination is also held under the said Rules, the condition mentioned in Rule 5.3(i) has no relevance, as only a meritorious candidate has a chance of selection in terms of the scheme of selection.
viii) Since no separate age limit is prescribed for a candidate who has passed LL M, the said Rules are arbitrary. The ::: Downloaded on - 09/06/2013 15:56:16 ::: 30 maximum age limit of 25 years prescribed for candidate qualifying under Rules 5(3)(i) and 5(3)(ii) is unrealistic and prevents meritorious candidates who have taken up a degree course after pursuing studies in other faculties like MBBS, Engineering etc. B] SUBMISSIONS BASED ON DUE IMPORTANCE NOT BEING GIVEN TO MARATHI LANGUAGE :-
i) That though Marathi has been adopted as a language in the lower Courts by virtue of the Notification issued under Section 272 of the Criminal Procedure Code and Section 137 of the Civil Procedure Code, Marathi is not included as one of the subjects in the examination held for the said post of CJJD and JMFC.
ii) That the facility of being issued Question Paper in Marathi and facility to answer the said questions in Marathi has not been offered to the candidates in spite of the ::: Downloaded on - 09/06/2013 15:56:16 ::: 31 Government decision of making Marathi as the official language in the lower Courts and the instructions issued by the High Court as contained in the Circular dated 9th December 2007 directing the Lower Courts to write judgments in Marathi, particularly in the matters pertaining to the applications under Section 125 of the Civil Procedure Code, cases under Section 137 of the Negotiable Instruments Act, simple money suits and like matters.
iii) That the requirement of the candidate to get certificate from the authorities mentioned under Rule 5(3)(d) could not serve any purpose, as no guidelines have been issued to such authorities as on what basis they have to issue the said certificate.
iv) That keeping the medium of examination only as English deprives the candidates from the mofussil areas of the State from effectively competing at the said examination, as they are not well conversant with English.::: Downloaded on - 09/06/2013 15:56:16 ::: 32
v) That in view of other States viz. Himachal Pradesh, Orissa, Rajsthan, West Bengal wherein candidates are granted facility to write their answer sheets of the examination in local language, why such a facility cannot be extended in the State of Maharashtra. If such a facility is offered the candidates' knowledge of the local language can be easily ascertained and thereby need of the candidates to obtain a certificate to vouchsafe their knowledge of Marathi would not be necessary.
vi) That though the concerned Rules mention that a candidate would have to pass examination in Marathi within six months of joining the judicial service, the consequence of not passing the said examination have not been mentioned, thereby the candidates' knowledge of Marathi is sought to be compromised.::: Downloaded on - 09/06/2013 15:56:16 ::: 33
CONSIDERATION :-
9 The genesis of selecting fresh law graduates having excellent academic record for direct appointment in the judicial service was in the Fourteenth Report of the Law Commission of India wherein the Law Commission has recommended the recruitment of brilliant young candidates who can set a higher tone, raise the bar as it were of the subordinate judiciary. The Law Commission whilst dealing with the recruitment to the Judicial Services expressed the view that three years practice at Bar should be prescribed as one of the minimum qualification of eligibility for entering into lower judicial service, recruited at the State level.
10 The said issue was also dealt with by the First Judicial National Pay Commission popularly known as the Shetty Commission. The said Shetty Commission has left it to the High Courts and State Governments as the case may be to select either advocates beyond certain standing at the Bar or ::: Downloaded on - 09/06/2013 15:56:16 ::: 34 outstanding law graduates having aptitude for judicial service. The Shetty Commission also recommended a selection procedure involving a examination followed by viva-voce test/interview, preferably conducted by the State Service Public Commission wherein the nominee of the High Court would be associated. The Shetty Commission recommended the maximum age of 35 years for eligibility for selection to the cadre of Civil Judge, Junior Division with suitable relaxation of three years for the candidates from backward category.
11 The recommendations of the Shetty Commission were borne in mind while framing the Rules of 2008 which govern the recruitment to the post of C.J.J.D and J M F C. The Rules contemplate the recruitment of candidates having brilliant academic record and who are below 25 years of age directly to the said post vide Rule 5.3(i). The said Rules also provide for recruitment of candidates who have put in three years of practice and who are not more than 35 years of age.
::: Downloaded on - 09/06/2013 15:56:16 ::: 35The recruitment to the said post from the year 2008 has been carried out in terms of the said Rules.
The said Rule 5.3 in its entirety is reproduced herein under as also the relevant clause relating to the knowledge of Marathi Language :-
Rule 5. Method of Recruitment, Qualification and Age Limit --- In respect of each category of posts specified in column (2) of the Table 'C' below, the method of recruitment and minimum qualification, age limit, etc. shall be as specified in the corresponding entries in columns (3) and (4), thereof, namely--
TABLE `C'
Sr. Cadre Method of Qualifications, age limit, etc.
No. Recruitment
1 2 3 4
3 Civil (A) By (a) Educational
Judge, nomination on Qualification.--- Must hold a
Junior the basis of Degree in Law.
Division aggregate marks (b) Experience.-- Must have
obtained in practiced as an Advocate in ::: Downloaded on - 09/06/2013 15:56:16 ::: 36 competitive the High Court or Courts examination subordinate thereto for not conducted by less than three years on the the Commission date of publication of in terms of the Advertisement; or Examination Must be a fresh Law Scheme as may Graduate who,---
be framed by the High Court. (i) has secured the degree in law by passing all the examinations leading to the degree in the first attempt.
(ii) has secured in the final ig year examination of the degree in Law or in the case of candidates holding Master's Degree in Law in final year exam, not less than fifty five percent marks; or (Emphasis supplied) Must be working or must have worked as Public Prosecutor or Government Advocate for not less than three years in the post or posts. In computing the period of three years the period during which the candidate has worked as an Advocate shall also be included ; or Must be a member of Ministerial Staff--
(i) of High Court or Courts Subordinate thereto; or ::: Downloaded on - 09/06/2013 15:56:16 ::: 37
(ii) of Offices of the Government Pleaders attached to those Courts; or
(iii) working as Legal Assistant and above in the Legal Section of Law and Judiciary Department in Mantralaya provided such employee has put in minimum three years of service after obtaining Degree in Law.
ig (c) Age - Not less than twenty one years and not more than;
(i) thirty five years in the case of Advocates with three years practice,
(ii) twenty five years in the case of fresh law graduates,
(iii) forty five years in the case of ministerial staff.
Provided that, upper age limit in each of the above categories may be relaxed by five years in respect of candidates belonging to communities recogtnised as backward by the Government for the purpose of recruitment.::: Downloaded on - 09/06/2013 15:56:16 ::: 38
(d) Knowledge of Marathi :--
Candidate must have sufficient knowledge of Marathi so as to enable him to speak, read and write in Marathi and to translate with facility from Marathi into English and vice versa. Such knowledge must be certified,-
(i) in case of an Advocate by the Principal District Judge of the District where he ig practices;
(ii) in case of a fresh law graduates, by Principal or Head of the College or University department where the candidate was enrolled for LL.B or LL.M Degree;
(iii) in case of members of Staff, by the Head of the Office under whom such candidate is working.
(iv) in special circumstances, by re-employment of retired Civil Judges (Junior Division);
(e) the candidates must pass Marathi language test within six months as per Government Rules.::: Downloaded on - 09/06/2013 15:56:17 ::: 39
The said Rules prescribing the qualifications and knowledge of Marathi are incorporated in the Advertisement.
12 The advertisement for the said post issued on 17th December 2008 was challenged by the Bar Council of Maharashtra and Goa by filing Writ Petition No.368 of 2009.
The judgment in the said Writ Petition is reported in 2009(4) Mh.L.J 112 in the matter of Bar Council of Maharashtra and Goa Mumbai v/s. State of Maharashtra & anr.
13 Though there was no specific challenge in the said Writ Petition that the advertisement was in contravention or ultra vires the rules, the said advertisement was challenged on the ground that the eligibility conditions were arbitrary and/or discriminatory. The said eligibility conditions or qualifications were based on Rule 5.3 as in the instant case.
The contention of the Petitioner in the said writ petition was that the persons belonging to the same class are sought to be treated differently. The said contention was negatived by the ::: Downloaded on - 09/06/2013 15:56:17 ::: 40 Division Bench of this Court by holding that the purpose of having different age criteria for two classes was neither arbitrary nor discriminatory since the purpose was to capture talent from amongst fresh law graduates whereas other category was that of law graduates optionally acquire some experience at the Bar and the take up the entrance examination. Para 4 of the said Report is material and is reproduced herein under :-
4. These Rules are statutory rules and the advertisement issued by the Commission on 17th December 2008, impugned in the present Writ Petition, is in consonance with the Rules.
In fact, in the Writ Petition and even during the course of the argument, there was no contention raised before us that the impugned advertisement is violative or ultra vires of the Rules. The advertisement being in consonance with the Rules, in law the impugned advertisement can hardly be faulted. The argument that the eligibility conditions are arbitrary and/or discriminatory is also without any merit. In consonance with the recommendations of the Shetty Commission, clear objective is sought to be achieved by the advertisement for such classification. The purpose is to capture talent from amongst fresh Law Graduates for induction into the service at the very threshold. Other classes ::: Downloaded on - 09/06/2013 15:56:17 ::: 41 specified under the Rules and in the advertisement is intended to let Law Graduates optionally acquire some experience at the Bar and then take up the entrance examination. To provide some age difference between these two classes thus is essential. This can neither be termed arbitrary nor discriminatory. These are classes of different persons belonging to a different class and persons of the same classes are not being treated differently. The option lies with the applicant as to which class he desires to come in, whether at the threshold or after gaining experience at the Bar. It is not only a laudable object but also squarely takes care of the practical objective and problems which may arise in appointment of Judges of the Junior Division. "
14 Though in the said Writ Petition, as mentioned above, there was no specific challenge to the Rules 5.3(i) and 5.3.(ii), the advertisement which was issued on the basis of the said Rules, was upheld by this Court and thereby the aforesaid Rules 5.3(i) and 5.3(ii) have received the imprimatur of this Court. In our view, therefore, the issue as regards carving out of the said two categories of candidates is no more res integra and is concluded by the judgement of the Division Bench (Supra).
::: Downloaded on - 09/06/2013 15:56:17 ::: 4215 However, since in the instant writ petitions, the Rules are sought to be challenged, we thought it appropriate to examine the contentions advanced on behalf of the Petitioners in that respect. The submissions advanced on behalf of the Petitioners, which we have reproduced herein above, in so far as Rules. 5.3.(i) and 5.3(ii) are concerned, as can be deciphered, are more on the interpretation of the said Rules rather than challenging the vires of the said Rules on the touchtone of Part III of the Constitution of India.
16. We would now proceed to deal with the submissions addressed on behalf of the Petitioners.
The submission of the Petitioners that the Rules of 2008 cannot be applied in view of the fact that the said Rules have not been placed before both the Houses of Legislature as mandated by Article 320(5) of the Constitution of India is mis-founded. The Rules of 2008 have been made under the ::: Downloaded on - 09/06/2013 15:56:17 ::: 43 exercise of powers under Article 234 of the Constitution of India and are not referable to Article 320(5) of the Constitution of India. The said Rules, therefore, are not required to be placed before both the Houses of Legislature, and therefore, the said submission of the Petitioners is borne out of a misconception of the legal position.
The contention of the Petitioners that since the procedure prescribed for placing the Rules before both the Houses of Legislature has not been followed and therefore the Rules framed by the Public Service Commission would apply cannot be countenanced for two fold reasons, firstly that the Rules framed under Article 234 of the Constitution of India, do not require such procedure to be followed before they are brought into force and, secondly in view of the decision of the Apex Court reported in 2007(3) SCC 720 in the matter of Sanjay Singh & Anr. v/s. U P Public Service Commission, Allahabad and ors. wherein the Apex Court has held that where the Judicial Service Rules contain specific provision ::: Downloaded on - 09/06/2013 15:56:17 ::: 44 with regard to any aspect of a matter, such provision will prevail and the Rules framed by the Public Service Commission to the extent it is inconsistent with the Judicial Service Rules will be inapplicable.
17 In so far as requirement of the Rule 5.3(i) that the candidates should have passed all the examinations leading to the Degree in first attempt is concerned, the same, in our view, is having a nexus with the object sought to be achieved viz. direct selection of a brilliant law graduate in the judicial service. The emphasis therefore is on academic excellence all through out and not only in the final year. The contention advanced on behalf of the Petitioners that passing the degree examination with 55% marks, as provided in Rule 5.3(ii), would serve the purpose, therefore, cannot be accepted. As can be seen, an exception has been carved out by the Rules in favour of brilliant law graduates who can be recruited directly even without spending any time at the Bar. The said Rule, therefore, as held by the Division Bench, has carved out a ::: Downloaded on - 09/06/2013 15:56:17 ::: 45 separate class by itself and therefore the requisites for belonging to the said class have to be strictly adhered to, and there cannot be any compromise in that behalf. For the same reason a candidate who has availed of the benefit of ATKT in any of the years cannot be held to be a candidate who has secured the degree in law by passing all the examinations leading to the degree in the first attempt. It is required to be noted that ATKT is a facility offered to a student who has failed in a particular subject or subjects to keep terms for the next year so that he does not loose an academic year. Such an indulgence shown to a student would not detract from the fact that the student has failed in a particular year.
In so far the case of a candidate who could not appear for a particular semester or examination on account of unforeseen circumstances is concerned, the rules being in the nature of subordinate legislation have not made any distinction in respect of such cases, the rigours of the rules would therefore apply to such a candidate also.
::: Downloaded on - 09/06/2013 15:56:17 ::: 46The contention of the Petitioners that in view of the selection process involving a preliminary examination and thereafter written examination and interview, there was no need to fix the qualification as prescribed by Rule 5.3(i) and 5.3(ii) in our view is misconceived. It is well settled that the appointing authority is within its power to prescribe a minimum eligibility criteria for the post in question. See 2008 (6) Mh.LJ 302 in the matter of Kum.Jayshree Zine and ors v/s. Maharashtra Public Service Commission and anr. The process of selection involving a preliminary examination and written examination are only a aid to prune down the number of eligible candidates so as to narrow down the zone of consideration for selection.
18 The next contention advanced on behalf of the Petitioners that the requirement of passing in the first attempt should be restricted to the semesters in the last two years of the five years course as it is the last two years which lead to ::: Downloaded on - 09/06/2013 15:56:17 ::: 47 the degree in law as the first three years lead to the degree in BGL Mumbai, BSL or BLS in Pune University and the Marathwada University or that the marks of the final year of the three years course should only be taken into consideration. The said submission, in our view, cannot be countenanced and has to be rejected for two fold reasons, firstly the requirement of the Rule is that the candidate should have secured 55% in the final year by passing all the examinations leading to the degree in law in the first attempt and secondly considering the scheme of both the three years and five years courses.
The five years course leading to the degree of law is an integrated course where different subjects are taught in each year of the five year course. Though the degree of BGL or BSL is granted after three years, the same is at intermediate stage and part of the integrated course towards degree of law.
::: Downloaded on - 09/06/2013 15:56:17 ::: 48In so far as three years course is concerned, the same analogy as applicable to the five years course will have to be applied for not taking into consideration the marks of only the final year. The rule in so far as it prescribes that a candidate should have passed all the examinations leading to the degree in law, therefore has a rationale and consequently a nexus with the object sought to be achieved which we have already spelt out in the earlier part of this judgment.
In so far as fresh law graduate is concerned, as mentioned herein above, academic excellence is expected through out the five years course or three years course and it is on the said basis an exception is carved out by the Rules in their favour. Any dilution of the requirement would, therefore, negate the purport and intent of the said exception carved out to capture fresh law graduates for induction into judicial service.
::: Downloaded on - 09/06/2013 15:56:17 ::: 49A useful reference could be made to a Division Bench Judgment of this Court to which one of us A.M.Khanwilkar, J. was a party, reported in 2010(1) Bom.C R 829, in the matter of Prajakta Savarkar Shinde v/s. Union of India and ors. In the said case a somewhat similar contention was raised as is sought to be raised in the instant petition, which was negatived by the Division Bench. The said case concerned admission to the one year orientation course for Engineering Graduate and Science Post Graduates (OCES conducted by Department of Atomic Energy for 2009-2010).
The information brochure published inter-alia contained the qualification required for admission to the said course. The said qualification read as under :-
"A. Qualifying Degrees and other Academic Requirements for OCES/DGFS
(a) For Engineering Disciplines (codes 21-29):
BE/BTech/BSc (Engineering) with a minimum of 60% marks in any of the engineering disciplines mentioned in Table-1 and valid GATE Score in the same engineering discipline as the qualifying degree discipline. Those having qualifying degree in branches like Aerospace, Automobile, Industrial Production, Reliability, Ceramics, Mining, Bio-Medical Electronics/Instruments, Communication, Information Technology, Master ::: Downloaded on - 09/06/2013 15:56:17 ::: 50 of Computer applications, Dyes & Dye Intermediates, Electrochemical, Energy Systems, Oils & Fats, Paints & Varnishes, Petrochemicals, Plastics, Paper, Sugar Technology, Textiles, etc. are not eligible." (emphasis supplied) "
The scheme for selection involved a Written Examination viva-voce and Medical Test. The Petitioner in the said case had secured 64.65% marks in the first year of Engineering, 66.81% marks in the second year, 61.04% marks in the third year and 59.25% marks in the fourth year. The average of the aggregate marks obtained by her for all the four years came to 62.93%. The Petitioner was allowed to appear for the written examination and interview which she passed and thereafter also cleared the medical test. However, the Petitioner was not considered for selection on the ground that she had not obtained 60% marks at the final year examination of Engineering which was the qualifying examination.
It was contended on behalf of the petitioner in the said case that since the Petitioner had secured more than 60% ::: Downloaded on - 09/06/2013 15:56:17 ::: 51 marks as "average of marks" secured at the examinations held for all the four years of Engineering she should be held as fulfilling the eligibility criteria. The said contention was negatived by the Division Bench of this Court by observing that the candidate must have secured minimum 60% marks in the qualifying examination in the core Disciplines namely the "final examination" after which degree is awarded to the applicant in terms of the Statute, Ordinance, Rules and Regulations of the University. Paras 8 and 9 of the said Judgment are relevant which read thus :-
"8 We are not concerned with the other disciplines in the case on hand. The question is whether the above condition spells out that the candidate should have secured minimum 60% marks at the "final year" of Engineering/Post Graduate post examination or is it possible to construe the same to mean that the candidate should have secured more than 60% marks as "average of marks" secured at the examinations held for "all the four years" of Engineering/Post Graduate Course Examination. On plain language of this stipulation, we have no hesitation in taking the view that the same postulates that the candidate must have passed in Engineering Discipline BE/BTech/BSc (Engineering) and secured minimum of 60% marks in the concerned Engineering ::: Downloaded on - 09/06/2013 15:56:17 ::: 52 Discipline as the qualifying degree discipline. In other words, the candidate must have secured minimum 60% marks in the qualifying examination in the Core Discipline, namely, the "final examination" after which degree is awarded to an applicant in terms of the Statute, Ordinance, Rules and Regulations of the University. Very recently we had occasion to consider a similar provision in the case of Abhishek s/o. Vidya Nand Singh v/s.
Hindustan Petroleum Corporation Ltd. In the Writ Petition (L) No. 808/2009 etc. decided on 13th August, 2009. The condition in that case was that the candidates who have 60% and above marks in the qualifying examination would be eligible to apply. The other category of candidates who were permitted to apply were who have appeared for their final year examination by July 2008 and awaiting their results. In so far as the latter category of candidates, it was further provided that on the date of application, the candidate must have secured minimum 60% marks in aggregate till the last semester for being considered eligible to apply.
There is similarity in the sweep of the two provisions. Notably, in that case the Corporation took a plea which is now being pursued by the Petitioner herein. The Corporation had argued that for considering the eligibility and reckoning the marks secured by the candidate at the qualifying examination, the aggregate of "all the semesters"
will have to be taken into account and not the marks secured by the candidate at the "final year" of the degree course. This contention has been negatived on two counts. Firstly, that the stipulation in the brochure did not permit such interpretation and Secondly because once a degree is issued by the University in terms of the Statute, Ordinance, Rules and Regulations of the University, then it is not open for the employer to impose any other limitation ::: Downloaded on - 09/06/2013 15:56:17 ::: 53 which would frustrate the statutory force of that degree, unless there was unambiguous and clear stipulation in the advertisement inviting applications for employment of candidates who not only have the degree but their entire course percentage of marks is above 60% which will be counted for determining the percentage of marks specified in that advertisement. The Court went on to observe that the expression "qualifying examination" is within the power, ambit and jurisdiction of the University and that is what should be treated as final examination of the degree course. Besides, what should be treated as the qualifying examination is to be ascertained and defined by none other than the University itself. We had occasion to examine the Ordinance and Regulations of Mumbai University and on conjoint reading thereof, we have held that the Scheme of the Statute of Mumbai University clearly shows that it is the marks obtained in the Seventh and Eighth Semesters which are determinative of issuance of degree of Bachelor of Engineering in all the Core Disciplines; and, therefore, 60% marks referred to in the Brochure in terms of advertisement ought to relate to the "final examination" of the degree course in respect of candidates who have passed the qualifying examination. The position expounded in the said decision would answer the issue raised on behalf of the Petitioner.
9. Considering the plain language of the stipulation in the Information Brochure published by the Respondent in the present case, the only meaning that can be ascribed thereto is that the candidate must have secured minimum of 60% marks in any of the Engineering Disciplines at the qualifying or "final degree examination." In the present case, the Petitioner has secured only 843 ::: Downloaded on - 09/06/2013 15:56:17 ::: 54 marks out of total 1425 marks at the final examination which in terms of percentage would work out to be less than 60%. The degree issued to the Petitioner is on the basis of the said marks and not on the basis of average of all the semesters of the degree course. The Petitioner has erroneously assumed that the average marks secured in all the eight semesters of the degree course will have to be taken into account for determining her qualifying marks, which stand is not consistent with the notification inviting applications nor with the extant Rules and Regulations of the Mumbai University. "
19Similarly the contention advanced on behalf of the Petitioners that age limit of 25 years for fresh law graduates is unrealistic as the candidates who were earlier pursuing studies in other streams like Medicine, Engineering etc but who have thereafter opted for law are debarred in view of the age limit of 25 years, in our view, in the teeth of the purport and intent of the said Rules, this argument does not commend to us. The object of the said Rule is to capture fresh talented law graduates at the threshold having an excellent academic record. The said Rule therefore contemplates a candidate who has taken up a career in law at the threshold and who also has an excellent academic record.::: Downloaded on - 09/06/2013 15:56:17 ::: 55
We, therefore do not find the said age limit of 25 years to be unrealistic or arbitrary in any manner. It would also be pertinent to note that the second avenue of three years practice with the higher age limit of 35 years is also open to the candidates.
20 It was also sought to be faintly submitted by the learned counsel for the Petitioners that the persons who have failed in one semester but who have passed the same in the same academic year were allowed to appear for interview.
Beyond making the said submission no factual data was placed by the learned counsel for the Petitioners before us. It was therefore not possible for us to examine the said submission and the said submission therefore would have to be rejected in the absence of any factual data.
21 The contention advanced on behalf of the Petitioners that since the Petitioners were allowed to appear for preliminary examination and thereafter main ::: Downloaded on - 09/06/2013 15:56:17 ::: 56 examination, the Respondents ought not to have cancelled their interviews is, in our opinion, mis-founded. If a particular candidate is not entitled to participate in the selection process as he is not eligible for the same, the mere fact that he/she was allowed to appear in the selection process would not confer any right on such candidate and, in our view, therefore the action of the Respondents in cancelling the interview of the Petitioners was justified.
CONSIDERATION VISA-A-VIS CHALLENGE ON THE GROUND OF DUE IMPORTANCE NOT BEING GIVEN TO MARATHI LANGUAGE.
22 No doubt it is true that the State Government has issued Notification under Section 272 of the Code of Criminal Procedure and Section 137 of the Code of Civil Procedure making Marathi the language of the lower Courts. In keeping with the said policy of the State Government, the Rule in question requires that a candidate should have adequate ::: Downloaded on - 09/06/2013 15:56:17 ::: 57 knowledge of Marathi. The said Rule also provides that the selected candidate has to pass an examination in Marathi within six months of joining the judicial service. This can be gathered from the Rules which have been reproduced in the earlier part of this Judgment.
23 The contention of the Petitioners that considering the present selection process the knowledge of Marathi has been compromised, in our view, is mis-placed. As can be seen from the Rules, the said Rules prescribe that a candidate has to obtain certificate from the Authorities mentioned in the said Rule. The said Authorities are the responsible persons who have had an occasion to observe the candidate at close quarters viz. the District Judges of the concerned District Courts, Principals of the Colleges, Heads of the Departments etc. It would therefore have to be presumed that the said power of issuing certificate would be exercised by the said authorities with due caution and care, keeping in mind the post to which the candidate is seeking appointment viz. that ::: Downloaded on - 09/06/2013 15:56:17 ::: 58 of the CJJD and JMFC. We, also for the aforesaid reason, do not find any merit in the contention of the Petitioners that in the absence of any guidelines or criteria which the authorities have to adopt for issuing the said certificate, the said certificate would be issued in an arbitrary manner and in the process the knowledge of Marathi would be compromised.
24 As regards the contention of the Petitioners that though it is prescribed that a candidate would have to pass the examination in Marathi within six months, the consequences of not passing the said examination are not mentioned. In this respect it is required to be noted that the candidates are appointed on probation and the six months period would be within the probationary period, the appointing authority would therefore be entitled to take an appropriate decision in respect of a candidate who does not pass the said examination in Marathi within the stipulated time. In our view therefore the Petitioners apprehension is misfounded.::: Downloaded on - 09/06/2013 15:56:17 ::: 59
25 The next contention advanced on behalf of the Petitioners that since other States like Karnataka, Orissa, West Bengal, have prescribed a paper in the local language, whereby according to the Petitioners, the knowledge of the candidate of the local language can be ascertained, and, therefore, the State of Maharashtra should also adopt the said methodology of ascertaining the knowledge of Marathi of the candidate. In our view, just because in other States there is a paper in the local language, that cannot be a basis for the State Government to introduce a paper in Marathi for the written examination. The State Government, in the instant case, has thought it fit to ascertain the candidates' knowledge of Marathi by the method prescribed in the Rules. In our view, the State Government is the best judge in that regard and we therefore cannot substitute our judgment for that of the State Government.::: Downloaded on - 09/06/2013 15:56:17 ::: 60
26 In any event, prescribing a paper in Marathi would amount to us legislating meaning thereby directing the State Government to frame rules in a particular manner. Such directions, in our view, cannot be given by us in our extra-
ordinary writ jurisdiction under Article 226 of the Constitution of India.
27 In so far as facility of answering the paper in Marathi or taking the examination in Marathi is concerned, we find considerable merit in the submission of the Petitioners in that regard. Since the policy of the State Government has now been implemented by directing Marathi to be a language of the lower Courts, this Court also having issued directions on the administrative side for the lower judiciary to writ judgments in Marathi. In our view, it would be in the fitness of things if the candidates are given the facility of taking the examination of CJJD and JMFC in Marathi and answering the same in Marathi. We would recommend to the Respondent No.1 to make the said facility ::: Downloaded on - 09/06/2013 15:56:17 ::: 61 available to the candidates at least from the next examination for selection of subordinate judicial officers in the State of Maharashtra.
Since the Rules have only come into force in the year 2008 in so far as ascertaining the knowledge of Marathi is concerned, the requirement prescribed by the said Rules for ascertaining the said knowledge would have to be given a fair run so as to ascertain as to whether review is required to be taken of the said Rules. In our view, therefore, no direction can be issued in that behalf.
28 For all the aforesaid reasons, we do not find any merit in the above Petitions as well as in the PIL, which are accordingly dismissed and Rule discharged.
29 In so far as Writ Petition No.1751 of 2009 is concerned, the same concerns appointment to the post of Clerk and therefore requires to be de-linked from the above ::: Downloaded on - 09/06/2013 15:56:17 ::: 62 Petitions. It is accordingly de-linked and the office is directed to place it before the Hon'ble the Chief Justice for obtaining appropriate directions for being sent back to the Aurangabad Bench.
(R M SAVANT, J.) (A M KHANWILKAR, J) ::: Downloaded on - 09/06/2013 15:56:17 :::