Nirkitaben Mohitkumar Soni Thro'Poa ... vs Registrar Honourable High Court Of ... on 15 July, 2014

[Cites 13, Cited by 8]

Gujarat High Court

Nirkitaben Mohitkumar Soni Thro'Poa ... vs Registrar Honourable High Court Of ... on 15 July, 2014

Bench: Jayant Patel, Z.K.Saiyed

       C/SCA/29765/2007                           JUDGMENT



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        SPECIAL CIVIL APPLICATION  NO. 29765 of 2007
                            With 
         SPECIAL CIVIL APPLICATION NO. 29861 of 2007
                            With 
         SPECIAL CIVIL APPLICATION NO. 29862 of 2007
 
FOR APPROVAL AND SIGNATURE: 
 
 
HONOURABLE MR.JUSTICE JAYANT PATEL
 
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
 
==============================================================

1  Whether Reporters of Local Papers may be allowed 
   to see the judgment ?

2  To be referred to the Reporter or not ?

3  Whether their Lordships wish to see the fair copy 
   of the judgment ?

4  Whether this case involves a substantial question 
   of law as to the interpretation of the 
   Constitution of India, 1950 or any order made 
   thereunder ?

5  Whether it is to be circulated to the civil 
   judge ?

==============================================================
     NIRKITABEN MOHITKUMAR SONI THRO'POA MOHITKUMAR N 
                   SONI....Petitioner(s)
                           Versus
      REGISTRAR HONOURABLE HIGH COURT OF GUJARAT  & 
                    83....Respondent(s)
==============================================================
Appearance:
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1
MR R G CHAUDHARY, ADVOCATE for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 9  10 , 15  17 , 30  
31 , 37 , 49 , 54 , 58  59 , 62  65 , 68 , 72 , 77  79 
, 84
DS AFF.NOT FILED (R) for the Respondent(s) No. 23 , 56
MR TR MISHRA, ADVOCATE for the Respondent(s) No. 18 , 23 
 24 , 27  28 , 39 , 42  43 , 46 , 50 , 52 , 60 , 74 , 


                            Page 1 of 62



                                                             1 of 124
        C/SCA/29765/2007                               JUDGMENT



80
NOTICE SERVED BY DS for the Respondent(s) No. 20
RULE SERVED for the Respondent(s) No. 2
RULE SERVED BY DS for the Respondent(s) No. 18 , 24  
29 , 33 , 35  36 , 38  43 , 46 , 50 , 52 , 55 , 60 , 74 
, 80
UNSERVEDREFUSED (N) for the Respondent(s) No. 35
LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 1 
 2
MR ANAND L SHARMA, ADVOCATE for the Respondent(s) No. 6
MR AS SUPEHIA, ADVOCATE for the Respondent(s) No. 1  2
MR ASHISH B DESAI, ADVOCATE for the Respondent(s) No. 56
MR JF MEHTA, ADVOCATE for the Respondent(s) No. 3  5 , 7 
 8 , 11  14 , 19 , 21  22 , 32 , 34 , 36 , 44  45 , 
47  48 , 51 , 53 , 57 , 61 , 66  67 , 69  71 , 73 , 75 
 76 , 81  83
MR MP PRAJAPATI, ADVOCATE for the Respondent(s) No. 26 , 
29 , 33 , 38 , 40  41
MR PJ KANABAR, ADVOCATE for the Respondent(s) No. 55
==============================================================

          CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
                 and
                 HONOURABLE MR.JUSTICE Z.K.SAIYED
 
                     Date : 15,16,17 & 18/07/2014
 
                         ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. As in all the matters, the questions are interconnected and common issues arise for consideration pertaining to recruitment for the post of Clerks and Peons in the set up of subordinate courts of Dahod district, they are being considered simultaneously.

2. The short facts of the case appears to be that the advertisement dated 21.06.2005 was published by the Principal District Judge of Dahod District Court (hereinafter referred to as "District Court" for the sake of convenience) Page 2 of 62 2 of 124 C/SCA/29765/2007 JUDGMENT inviting applications for the post of Assistant (Junior Clerk), Librarian, Driver, Peon, etc. As per the said advertisement, the requisite age for the post of Assistant (Junior Clerk), ClassIII was mentioned as not less than 18 years and not more than 25 years on 02.07.2005. There were also other age limits prescribed for different posts, which are not the subject matter of the present proceedings, except that for the post of Peon/Waterman/Jail Warder/Chowkidar, the same age was provided as that for the post of Assistant (Junior Clerk). As per the petitioner of SCA No.29765/07, she applied for the post of Assistant (Junior Clerk). She cleared written test and she was called for interview vide letter dated 14.03.2006 and the interviews were to be held on 27.03.2007. The said petitioner found that her name was not there in the select list and upon further inquiry, she learnt that certain persons, who were appointed purely on adhoc and temporary basis, were also selected. The petitioner further inquired into the matter and found that large number of persons selected were either age barred or they were in relation with other persons working in the set up of District Court and subordinate courts as well as in the other courts of Gujarat State. The petitioner addressed representation to the Hon'ble Chief Justice on administrative side vide letter dated 06.08.2007, but as per the petitioner, as no action was taken, the present petition for Page 3 of 62 3 of 124 C/SCA/29765/2007 JUDGMENT challenging the legality and validity of the select list prepared at the recruitment process. The said petitioner has prayed that the select list dated 11.07.2007 be quashed and set aside and it is also prayed that appropriate writ be issued to inquire about the ways and method adopted by the respondents to prepare the list of the candidates eligible to apply for the post of Assistant (Junior Clerk) (hereinafter referred to as "Junior Clerk" for the sake of convenience).

3. In Special Civil Applications No. 29861/07 and 29862/07, the petitioners had applied for the post of Peon in response to the very advertisement and the grievance of the petitioners is that their names appeared in the first select list which was prepared and displayed on the notice board. Thereafter, on the next day, another select list was placed on the notice board wherein the name of the petitioners were deleted. The petitioners have also alleged favouritism and nepotism for certain candidates who as per the petitioners were relatives of the District Judge discharging his duties in Dahod district. The allegation is also made that by ignoring age factor, certain persons were selected on the post of Peon. These petitioners have also made the same prayer as made by the petitioner of Special Civil Application No.29765/07 for quashing and setting aside of the select list for the post of Peon and Page 4 of 62 4 of 124 C/SCA/29765/2007 JUDGMENT even inquiry is prayed for the ways and method adopted by the respondents in preparing the list of candidates for the post of Peon. As the names of the petitioners were deleted, they are aggrieved by the said action and hence, the present petitions before this Court.

4. We have heard Mr.R.G. Chaudhary as well as Mr.PM Lakhani, learned counsel appearing for the respective petitioners. We have heard Mr.Supehia for the Registrar, High Court as well as for the District Court. We have heard Mr.JF Mehta and Mr. TR Mishra for the concerned respondents. Mr.Upadhyay and other learned advocates have adopted the same stand as taken by the learned advocate appearing for the Registrar, High Court as well as the District Court.

5. The learned counsel for the petitioners raised two contentions, one is that there were large number of persons included in the select list who were age barred. In their submission, the upper age limit for the post of Junior Clerk as well as for the post of Peon was 25 years and those who were selected for the posts had completed 25 years of age, and therefore, the action would be bad in law. It was submitted that it was not mentioned in the advertisement that relaxation would be available to the employees working as temporary and on adhoc basis with the District Court or with State Legal Aid Page 5 of 62 5 of 124 C/SCA/29765/2007 JUDGMENT Authority. He submitted that in absence of such specific clause in the advertisement, no age relaxation could have been granted by the selection committee. They submitted that as per the decision of the Standing Committee of the High Court, only temporary and adhoc persons working in the set up of District Court, Dahod were entitled to age relaxation and not those who were working on adhoc basis with State Legal Aid Authority. They submitted that under the circumstances, the selection would be bad in respect of those persons who were age barred or those who had already completed age of 25 years at the time of advertisement.

6. The second contention raised by the learned counsel for the petitioners was that there was favouritisim and nepotism in the selection process inasmuch as large number of persons were such whose relatives were either working in the set up of District Court or other subordinate courts of the same district or other courts of Gujarat State. It was also submitted that the then District Judge was member of the selection committee and his own relatives were also selected and as he had participated in the said selection process, the selection would be bad in law. As per the learned counsel, it is a case of favouritism played in the public employment and therefore, the selection is required to be set aside, at least, for those persons who were Page 6 of 62 6 of 124 C/SCA/29765/2007 JUDGMENT either age barred or who were relatives of employees working in the set up of the subordinate courts or the District Court, as the case may be.

7. Whereas, Mr.Supehia, learned counsel appearing for the Registrar of the High Court and District Court, submitted that it is not that in case of large number of candidates, age relaxation has been granted. But as per him, the age relaxation for the post of Junior Clerk was considered and granted in respect of only 11 persons out of them one expired. Hence, only in case of 10 persons, that too on the ground that they were working in the Court set up, may be as a court staff itself or under State Legal Aid Authority. He submitted that for the post of Peon, no relaxation was considered for age. In respect to the grievance made by Mr. Lakhani for the candidates who had applied for the post of Peon, he submitted that the petitioner of SCA No.29861/07 was over aged for the post of Peon and after publication of the list, such mistake was detected and hence, immediately, on the next date, another list was published, wherein his name was excluded. So far as petitioner of SCA No.29862/07 is concerned, Mr.Supehia submitted that his name was not at all there in the first list or any select list and therefore, there was no question of deletion or exclusion of his name in the select list since he was not found fit to Page 7 of 62 7 of 124 C/SCA/29765/2007 JUDGMENT be included in the select list.

8. Mr.Supehia, learned counsel submitted that for the ministerial staff of subordinate courts, the High Court is competent authority for taking appropriate decision for the manner and method of recruitment for such staff. The High Court enjoys such power under Article 235 of the Constitution of India. He submitted that the High Court on administrative side, through Standing Committee, had taken decision in the year 2004 for grant of age relaxation in respect of persons working on temporary and adhoc basis in the setup of District Court, Dahod. Further, as per him, the question of age relaxation was considered even in respect of the persons working on temporary and adhoc basis with the State Legal Aid Authority. In his submission, the High Court on administrative side, had such power to take appropriate decision for age relaxation. He submitted that after undergoing the selection process, the list was forwarded to the High Court on administrative side and in the said list, the aspect of age relaxation for in all 11 candidates, effectively 10 candidates, since one person had expired, was specifically mentioned and the same was duly approved by the High Court. He submitted that in any recruitment process, the bar of age limit is not operating in absolute, but it is coupled with the power of age relaxation. He submitted that in the Rules Page 8 of 62 8 of 124 C/SCA/29765/2007 JUDGMENT framed by the State Government, viz., Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, which are applicable to all the posts of the State from Class I to Class IV for the employees of State Government, there are powers of age relaxation as per Rule 16. He submitted that those Rules are not applicable directly for recruitment process of ministerial staff of the subordinate courts, for District Courts and the High Court. However, as per him, such powers of relaxation in case of Government employees, vest to the Government and similarly, such power would vest to the High Court for age relaxation. As per him, in the executive instructions issued by the then Government of Bombay dated 26.12.1957, after consultation with the High Court, the power for age relaxation has been provided in respect of the candidates working on leave vacancy on temporary basis. As per his submission, even if there is no express power provided by any Rules or in absence of any Rule or executive instruction, the power will vest with the High Court on administrative side under Article 235 of the Constitution of India. As per him, it is not a matter where persons similarly situated are given different treatment since all those persons who were found meritorious, but working in the setup of the District Court or the State Legal Aid Authority, have been granted age relaxation. As per Mr.Supehia, when those persons in respect of whom Page 9 of 62 9 of 124 C/SCA/29765/2007 JUDGMENT age relaxation has been granted were in all 10 and out of those 10 persons, 6 persons were such that they were in the age group of 1825 years when they entered service on temporary and adhoc basis and therefore, they were qualified when they joined service with the District Court and with the State Legal Aid Authority. However, in respect of two persons, Mr. A.B. Trivedi and Mr.R.M. Pirzada, when they were in service on temporary basis, they were aged 30 years and 27 years respectively. Further, in respect of another candidate Ms. G.T. Gajjar, she was aged 29 years when she joined the service, but she was falling in the category of SEBC for which, age relaxation upto 5 years if considered from upper age limit of 25 years, it can be said that she was within the qualified age limit when she joined service as adhoc and temporary employee. He submitted that in the case of Ms. A.B. Trivedi, and Mr.R.M. Pirzada, as they were above the qualified age, such relaxation has been granted at the time when they joined service as temporary and adhoc employees and having taken into consideration such aspects, subsequently, at the time of recruitment for the present advertisement, relaxation was granted treating them at par with the other employees and the age relaxation was recommended which has been so sanctioned by the High Court on administrative side. He submitted that therefore, when all employees working on temporary and adhoc basis Page 10 of 62 10 of 124 C/SCA/29765/2007 JUDGMENT are similarly treated, the decision for grant of age relaxation cannot be termed as arbitrary or illegal. He submitted that as the petitioner of SCA No.29765/07 was not working in the setup of the District Court or State Legal Aid Authority, she would not be entitled to the same treatment nor she can complain about the age relaxation since she was not similarly situated. As per Mr.Supehia, the decision of age relaxation by the competent authority cannot be said as unjust or arbitrary and hence, the select list cannot be set aside on that ground.

9. On the aspect of favouritism and nepotism, he submitted that none of the relatives of the court staff or judicial officer for whom the allegation has been made by the petitioners in the petitions were in the selection committee, except in respect of three candidates, viz., Parmar Bharat Bhailalbhai, Parmar Mehulsinh Maganbhai and Parmar Khusbu, the allegation made is that they were in relation with the learned District Judge and the learned District Judge was chairing the select committee and had participated in the selection process.

10. Mr.Mehta, learned counsel appearing for the said concerned candidate Parmar Bharat Bhailalbhai admitted that the District Judge Shri R.M. Parmar was his real uncle. But he fairly submitted that such aspect is not mentioned in Page 11 of 62 11 of 124 C/SCA/29765/2007 JUDGMENT the application. Mr.Supehia, submitted that if such aspect was not mentioned in the application, the application must have processed as it is. In respect of the another candidate Parmar Mehulsinh, the affidavit has been filed by him declaring that he is not having any direct or indirect relation with Shri R.M. Parmar who was District Judge at the relevant point of time. In respect of the third candidate Ms.Parmar Khusbu Harivadanbhai, Mr.T.R. Mishra, learned counsel under the instruction of his client who is personally present in the court, has declared that the then District Judge Shri R.M. Parmar is the husband of sister of her father Harivadanbhai. Mr.Mishra stated that as on the relevant date his client had married with a non scheduled caste person Abhishek Gohil on 25.11.2003, the relations with her father's family had ceased and therefore, the said aspect was not mentioned in the application form. So far as other candidates are concerned, it was submitted by Mr.Supehia that no material is produced that any of the relatives had influenced any member of the committee in the selection process and hence, on that ground, the selection cannot be said to be vitiated or bad in law.

11. The other learned Advocates appearing for the other candidates, who are selected and joined as partyrespondents, have adopted the submissions made by Mr.Supehia, learned Counsel Page 12 of 62 12 of 124 C/SCA/29765/2007 JUDGMENT for the Registrar of the High Court and the learned District Judge.

12. We may first examine the contention for assailing the selection process on the ground of age relaxation. It is true that in the advertisement, for the eligibility, the age of not less than 18 years and not more than 25 years was provided. However, in the footnote of the advertisement, it was mentioned that for the candidates of scheduled caste, scheduled tribes, socially and educationally backward classes, physicallyhandicapped and exservicemen, the benefits would be extended of the upper age limit as per the prevailing Government Rules. Therefore, it was not a matter, where absolute bar operated on the upper age limit, but the upper age limit for the post in question was subject to the availability of the benefits for relaxation as per the Government Rules. If the recruitment process is for the government employees, in contradistinction to the employees of the subordinate Courts, the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 framed by the State Government in exercise of the power under Article 309 of the Constitution of India would be applicable. As per the said Rules, Rule 16 provides that notwithstanding anything contained in these Rules, the State Government may, in the interest of public service, fill up a post, relax any of Page 13 of 62 13 of 124 C/SCA/29765/2007 JUDGMENT the provisions of these Rules. But the only embargo is that if the post is to be filled up in consultation with the Commission, no such appointment or relaxation shall be granted, except in consultation with the Commission. The aforesaid shows that the State Government, as per the Rules of 1967, has power to relax the provisions of the Rules, but the condition is that it should be in the interest of public service. It is true that the age limits have been provided under the Rules of 1967, but when it has been expressly provided under Rule 16, the power for relaxation under the Rules, such would include the power to relax the upper age in the interest of public service. If the decision of the State Government is to be tested on the ground of arbitrariness or even mala fide, it may be required for the State to satisfactorily demonstrate that the decision to relax the Rules has been taken in the interest of public service. It is hardly required to be stated that if the State Government fails to discharge the said burden, decision of the State Government for relaxation in the Rules may be struck down on judicial side. But, it cannot be said that there are no powers with the State Government under Rule 16 of Rules of 1967 for giving relaxation in the Rules, which would include the relaxation in the upper age. As per Article 235 of the Constitution of India, in respect of employees of District Courts and subordinate Courts, the High Page 14 of 62 14 of 124 C/SCA/29765/2007 JUDGMENT Court has power to control the method, manner and the mode of recruitment of candidates of Class III and IV services in the District Courts and the Courts subordinate thereto. At this stage, we may make useful reference to the decision of this Court in the case of Y.P. Kumpavat and Ors. vs. State of Gujarat and Ors., reported in 2013(3) GLH 1, wherein the High Court on administrative side had taken decision for centralized recruitment of ClassIII and IV employees in the District Courts and Courts subordinate thereto and the High Court had simultaneously taken decision that the waiting list prepared as per the earlier executive instructions is to be scrapped. The said decision was challenged on judicial side in the aforesaid matter. This Court found that the executive instructions could not be equated with the Rules framed by the Governor under Article 309 of the Constitution of India and in absence of any such Rules for the employees of ClassIII in the District Courts and Courts subordinate thereto, the High Court would have the power under Article 235 of the Constitution of India. This Court, in the said decision, at paragraph 57 observed, thus: "57. In view of the aforesaid discussion, our final conclusions in these appeals are as under:

1. The High Court in exercise of its Page 15 of 62 15 of 124 C/SCA/29765/2007 JUDGMENT power under Article 235 of the Constitution of India, can control the method, manner and the mode of recruitment of candidates to Class III and Class IV services in the District Courts and the Courts subordinate thereto, despite the fact that the power to make Rules as to the recruitment and conditions of service of the employees of the subordinate courts vests in the State Government;

2. The control vested in the High Court under Article 235 of the Constitution is exercisable not only over the members of the judicial services of the State as defined in Article 236(b) of the Constitution of India, but also over the ministerial officers and servants on the establishment of the subordinate courts in the matters of appointment, over and above the disciplinary control;

3. The policy decision of the High Court to have a Centralized Recruitment Cell for the purpose of undertaking the centralized selection process for recruitment of candidates to Class III and IV services in the respective District Courts could not be said to be in any manner illegal or in violation of the executive instructions as contained in the Government of Bombay, Home Department Resolution dated 26th December, 1957;

4. The High Court was not obliged in law, before formulating a policy to have a centralized recruitment process, to recommend the Government for making necessary amendments in the administrative instructions as contained in the Resolution of 1957, as the High Court should not be asked to run to the Page 16 of 62 16 of 124 C/SCA/29765/2007 JUDGMENT Government in all such matters as the Rules, if any, framed with regard to the members of such establishments, either administratively or under Article 309 of the Constitution, must be so read as to make them consistent with the administrative superintendence or control jurisdiction of the High Court under the Constitution;

5. The appellants, except the appellants of Letters Patent Appeal No. 809 of 2013, have no indefeasible right of remaining on the post, taking into consideration the fact that their initial appointments were ad hoc and on temporary basis."

13. The aforesaid shows that if there are statutory Rules framed for a particular mode of recruitment or for any Recruitment Rules for upper age limit and no power is available for relaxation in the upper age limit, such would be binding to the High Court on administrative side and so will be for any authority, may be at the District Court level or at the subordinate Court level, undertaking the recruitment process, but in absence thereof, the High Court on administrative side will have power under Article 235 of the Constitution of India to take appropriate decision for the mode, manner and method of recruitment of the employees of the District Courts and the Courts subordinate thereto. As observed by us herein above, Rules of 1967 are for the government employees, who are under the control of the State Government and Page 17 of 62 17 of 124 C/SCA/29765/2007 JUDGMENT such Rules are not applicable to the employees of ClassIII and IV services in the District Courts and Courts subordinate thereto for the recruitment process. It is a different matter that the High Court on administrative side may adopt the same procedure or may exercise same or similar power while undertaking the recruitment process. Under these circumstances, in absence of any statutory Rules framed by the Governor in exercise of the power under Article 309 of the Constitution of India, the High Court on administrative side under Article 235 of the Constitution of India will be the final authority for taking any policy decision in respect of the method, manner and mode of recruitment of candidates for ClassIII and IV services in District Courts and Courts subordinate thereto.

14. The learned Counsel for the petitioner did contend that the Rules of 1957, which has been referred to even in the aforesaid decision of this Court in the case of Y.P. Kumpavat and Ors. vs. State of Gujarat and Ors. (supra) did not provide for absolute power for relaxation and, therefore, it was submitted that the decision of the High Court even on administrative side for relaxation, if accepted, would be bad in law. We may, at this stage, refer to another decision of this Court in LPA No.231 of 2014 and allied matters dated 26.6.2014, wherein one of the contentions raised on behalf of the appellant Page 18 of 62 18 of 124 C/SCA/29765/2007 JUDGMENT therein was that the decision of the High Court on administrative side to scrap the select list already prepared in the year 2005 is in contravention to the Rules, which were framed vide Resolution dated 26.12.1957. This Court in the said decision, after extracting the view taken by another Division Bench of this Court in the case of Kumpavat and Ors. vs. State of Gujarat and Ors. (supra) observed at paragraphs 6 to 10 as under: "6. The contentions are raised is on wrong premises, inasmuch as, the executive instructions, which are titled as "Rules" by the learned Counsel are, in fact, no Rules but only executive instructions issued by the State Government in consultation with the High Court at the relevant point of time, in the year 1957. No statutory Rules were framed in exercise of power under Article 309 of the Constitution by the Governor. In the above referred decision of the Division Bench of this Court in LPA No.794 of 2013 and allied matters, at paragraph 12(i), while examining the controversy, this Court had recorded, thus: "12. Having heard the learned counsel for the respective parties and having gone through the materials on record, in our opinion, the following questions fall for our consideration in these appeals.

(i)Whether the High Court in exercise of its power under Article 235 of the Constitution of India can control the method, manner and mode of recruitment of candidates to Class III and Class IV services in the District Courts and the Courts subordinate thereto, despite the fact Page 19 of 62 19 of 124 C/SCA/29765/2007 JUDGMENT that the power to make rules as to the recruitment and conditions of service of the employees of the subordinate courts vests in the State Government, in the absence of which the Governor may frame rules under Article 309 and in absence of both, administrative or executive instructions can be issued under Article 162 of the Constitution of India?"

7. After formulating the questions for consideration, it was observed at paragraphs 13 to 19 as under:

13. Before adverting to the questions framed aforementioned, we should look into the Rules for recruitment of candidates for Class III and IV services in the District as contained in the Government of Bombay, Home Department Resolution dated 26th December, 1957. We reproduce the same as under: ADVISORY COMMITTEE FORMATION OF ADVISORY COMMITTEES FOR RECRUITMENT TO CLASS III AND CLASS IV SERVICES.

GOVERNMENT OF BOMBAY HOME DEPARTMENT RESOLUTION NO. MIS. 1055/62546III, SACHIVALAYA, BOMBAY, DATED 26th DECEMBER, 1957 Government Resolution, Political and Services Department No. GDR1955X, dated the 2nd May, 1955. Government letter, Home Department No. MIS1055/62546B, dated the 1st February, 1956 Letter No. B.5602/53, dated the 19th September, 1957 from the Registrar, Page 24 of 68 High Court (Appellate Side) Bombay.

R E S O L U T I O N:

Page 20 of 62

20 of 124 C/SCA/29765/2007 JUDGMENT Government has decided that Advisory Committee should be formed in every District to assist the District Judges in making appointments to Class III and Class IV Services in the Judicial Department. The Advisory Committee for each District should compose of the District Judge, the Assistant Judge and the Civil Judge, Senior Division.

In a District where there is no Assistant Judge, the Advisory Committee should compose of the District Judge and the Civil Judge, Senior Division.

2. The rules for recruitment of candidates to Class III and IV Services in the District are contained in the Appendix attached.

BY ORDER & IN THE NAME OF THE GOVERNOR OF BOMBAY.

Sd. V.N. Kalghatgi Assistant Secretary to the Government of Bombay, Home Department.

RECRUITMENT RULES FOR RECRUITMENT TO CLASS III AND IV SERVICES IN THE SUBORDINATE JUDICIAL SERVICES

1. The District Judge shall maintain a list of candidates for Class III and Class IV posts in his District and no candidate whose name is not on that list shall be employed in any Civil or Criminal Court.

2. The list shall contain names of candidates for recruitment to Class III and Class IV posts separately namely for (a) Clerks,

(b) Section Writes, (C ) Stenographers,

(d) Bailiffs and (e) Peons. Each part of the list shall be a separate one.

3. In preparing the list the District Judge shall act upon the advice of a Committee known as the Advisory Committee for recruitment to Subordinate Judicial Page 21 of 62 21 of 124 C/SCA/29765/2007 JUDGMENT Service in the District.

4. The Advisory Committee shall consist of the District Judge as the Chairman, Assistant Judge (for the time being working)in the District and the Civil Judge (Senior Division) (for the time being working) in the District, and if there is no Assistant Judge working in the District, then the Committee shall consist of the District Judge as the Chairman and a Civil Judge (Senior Division). If there is no Assistant Judge or a Civil Judge(Senior Division) the Committee shall consist of the District Judge as the Chairman and a Civil Judge (Junior Division) and Judicial Magistrate to be nominated by the Chairman.

5. The Advisory Committee shall prepare the list for recruitment to the various categories of the ClassIII and the Class IV Government Servants for the District. The list prepared by the Committee shall be final.

6. The number of candidates to be enlisted annually in each category of Class III and/or Class IV servants shall be such as to make the total number in each category equal to (a) the average temporary vacancies during the last two years plus

(b) the expected permanent vacancies for the next year and an addition of 20 % of

(a) and (b)for wastage.

7. Any list prepared by the Advisory Committee shall continue to remain in force till the list is exhausted.

8. If the number of candidates required under Rule 6 is small, the Advisory Committee may, in its discretion, not add to the previous list in any year.

9. Every year when the Advisory Committee meets to prepare a list, it shall also Page 22 of 62 22 of 124 C/SCA/29765/2007 JUDGMENT scrutinize the previous list in order to strike off persons ineligible for appointment from the said list.

10. Additions to each part of the list shall be made annually in August and the number of candidates to be enlisted shall be advertised in the local news paper of wide publicity and published in the various offices of the Department in the manner prescribed in paragraph 5 of Government Resolution, Finance Depart No. 5011, dated the 26th September, 1928. The Advisory Committee shall also call for lists of eligible candidates from the Employment Exchange Officer of the respective Division and the Director of Social Welfare, Gujarat State Ahmedabad. Upon receipt of the applications and after considering the lists sent by the Social Welfare Officer and the Employment Exchange Officer, the Committee may select the number of required candidates after holding a test, if necessary. The final selection, however, shall not be made without an interview."

14. A plain reading of the above referred Resolution of the then Government of Bombay of the year 1957 makes it very clear that they are not statutory rules framed under Article 309 of the Constitution of India, but they are executive instructions issued in exercise of the powers under Article 162 of the Constitution of India, in consultation with the High Court as is evident that there is a reference of letter No.B 5602/53 dated 19th September, 1957 from the Registrar, High Court (Appellate Side) Bombay.

15. It appears that after bifurcation of Gujarat from the then State of Bombay on 1st May, 1960, the Government of Gujarat, in its General Administration Department, issued a Circular, which reads as under: Page 23 of 62 23 of 124 C/SCA/29765/2007 JUDGMENT No. GSF1060 GOVERNMENT OF GUJARAT.

GENERAL ADMINISTRATION DEPARTMENT:

Ahmed abad, dated 1st May 1960.

CIRCULAR With a view to avoiding any administrative difficulty, Government is pleased to direct that all rules and regulations, procedure, circulars, instructions, all schemes and sanctions prevailing in the former Bombay State will continue to operate in the new State of Gujarat until changed for modified by the Government. By order and in the name of the Governor of Gujarat. V. ISVARAN, Chief Secretary to the Government of Gujarat General Administration Department.

16. The power to make Rules as to the recruitment and conditions of service of the employees of the subordinate courts vests in the State Government, in the absence of which the Governor may frame Rules under Article 309, and in the absence of both, administrative or executive instructions can be issued under Article 162 of the Constitution of India.

Article 309 of the Constitution of India provides that subject to the provisions of the Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. By virtue of the proviso, it is competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make Rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made, by Page 24 of 62 24 of 124 C/SCA/29765/2007 JUDGMENT or under an Act of the appropriate legislature under this Article and any Rules so made shall have the effect subject to the provisions of such Act. In other words, by the proviso, in the absence of the competent legislature making legislation, it is open to the Governor in the case of a State to make Rules, which will have force of law till such time law is enacted by the competent legislature.

17. In the instant case, we have found that there are no statutory rules framed under Article 309 of the Constitution of India. With that, we proceed to consider Article 162 of the Constitution of India. Article 162 sets out that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. In other words, the executive power is coextensive with the legislative power and can be exercised if the legislative power has not been exercised. In service laws, as is now settled, even if the rules have been made under Article 309 of the Constitution of India, it is still open to issue instructions pursuant to Article 162, in those matters where rules are silent or not made. There is yet another Article which may be noted, namely, Article 166. That Article provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Article 166(2) then sets out that the orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified by rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Subrule (3) sets out that the Governor shall make rules for the more convenient transaction of the business of Page 25 of 62 25 of 124 C/SCA/29765/2007 JUDGMENT the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

18. The very nature of the executive instructions is that they are not part of the statute or enactment. The executive instructions and actions cannot be read like legislation, nor are enacted like legislation. The executive guidelines are formulated in exercise of the executive powers with a view to guiding the authorities concerned and it can be amended from time to time for which no set procedure is required to be followed as in the case of statutory provisions.

19. It appears from the materials on record that the High Court on its administrative side constituted a Committee for framing Guidelines for centralized recruitment of persons to Class III and Class IV posts in various subordinate courts in the Districts, in view of the fact that the recruitment process undertaken at various Districts consumed a lot of judicial time and energy. The High Court took a policy decision in that regard and decided that recruitment to Class III and Class IV services should be centralized and should be conducted under the supervision of the High Court. It was also decided that common applications should be invited from different districts and the candidates should be asked to give preferences of the district. This would ensure that the candidates may not have to apply in different districts and the multiplicity of applications would get eliminated. It was also decided that the written examination would be objective in nature with a multiple choice question with or without negative marks. This would eliminate subjective assessment of the answers and would save time and energy in Page 26 of 62 26 of 124 C/SCA/29765/2007 JUDGMENT assessing question papers. It also appears that the Committee suggested that instead of amending the existing rules in the form of executive instructions, and getting them notified by the Government, the same could be brought in force by way of a High Court Notification or High Court's administrative direction/order." (Emphasis supplied)

8. Further after considering the other contentions, the Division Bench had recorded final conclusion at paragraph 57, which reads as under: "57. In view of the aforesaid discussion, our final conclusions in these appeals are as under:

1. The High Court in exercise of its power under Article 235 of the Constitution of India, can control the method, manner and the mode of recruitment of candidates to Class III and Class IV services in the District Courts and the Courts subordinate thereto, despite the fact that the power to make Rules as to the recruitment and conditions of service of the employees of the subordinate courts vests in the State Government;

3. The policy decision of the High Court to have a Centralized Recruitment Cell for the purpose of undertaking the centralized selection process for recruitment of candidates to Class III and IV services in Page 27 of 62 27 of 124 C/SCA/29765/2007 JUDGMENT the respective District Courts Page 65 of 68 could not be said to be in any manner illegal or in violation of the executive instructions as contained in the Government of Bombay, Home Department Resolution dated 26 th December, 1957 ;

4. The High Court was not obliged in law, before formulating a policy to have a centralized recruitment process, to recommend the Government for making necessary amendments in the administrative instructions as contained in the Resolution of 1957, as the High Court should not be asked to run to the Government in all such matters as the Rules, if any, framed with regard to the members of such establishments, either administratively or under Article 309 of the Constitution, must be so read as to make them consistent with the administrative superintendence or control jurisdiction of the High Court under the Constitution;

9. The aforesaid observations of the Division Bench in the above referred decision ultimately holds that in the year 1957, executive instructions were issued and they cannot be considered as Rules framed by the Governor in exercise of the power under Article 309 of the Constitution of India. It was further held that in absence of such statutory Rules, the High Court, in exercise of power under Article 235 of the Constitution can decide the method, manner and mode of recruitment of the candidate for ClassIII and IV services in the District Courts and subordinate Courts too.



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10. The aforesaid observations made by the Division Bench in the above referred judgement, if considered, the executive instructions of 1957, which is titled as Rules by the learned Counsel for the appellants, would not stand, nor the contention based thereon. When there are no Rules in exercise of the power under Article 309 no statutory right would flow therefrom to the appellants - original petitioners, nor they can contend that the action of the High Court for scrapping of the list and/or for issuance of new advertisement for filling up of the post is contrary to the Rules, since no Rules exists at all and what existed was the executive instructions, which get superseded by the subsequent decision of the High Court on administrative side in exercise of the power under Article 235 of the Constitution. It is hardly required to be stated that once an executive decision is taken or method is formulated by the executive decision, it can always be superseded by the subsequent decision on administrative side. When the High Court, being the constitutional authority under Article 235 of the Constitution of India for having control over the members of the judicial services as well as over the ministerial officers and servants on the establishment of the subordinate Courts, has taken decision to formulate the method, manner and mode of recruitment through centralized recruitment cell and to scrap or not to operate the list already prepared, such cannot be said to be contrary to the rules or law as sought to be canvassed."

15. The aforesaid observations made in the above referred two decisions of this Court would negate the contention raised by the learned Counsel for the petitioners that the decision of Page 29 of 62 29 of 124 C/SCA/29765/2007 JUDGMENT the High Court on administrative side for age relaxation would run counter to the socalled Rules, which are, in fact, not the Rules framed by the Governor in exercise of the power under Article 309 of the Constitution of India, but rather only by way of executive instructions.

16. It is true that even if the executive instructions are issued and any action is taken on administrative side, it has to meet with the test of Articles 14 and 16 of the Constitution of India when the matter is pertaining to a public employment. Therefore, we may now examine as to whether the decision taken for grant of age relaxation in respect of certain employees can be said to be arbitrary or not. The executive instructions dated 26.12.1957 provides for age relaxation vide Clause No.16 as under: "16. If a candidate who is otherwise fit and qualified, officiates during leave vacancies while within age and becomes age barred without being appointed in a permanent vacancy, his case shall be reported to Government for relaxation of age limit.

Provided that no order of the State Government for the relaxation of age limit shall be necessary in the case of a candidate, who having entered service (whether worked charged or not) in a temporary or officiating capacity while within the age continues without a break in such service till his confirmation but has become age barred at the time of such confirmation."





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17. The aforesaid shows that if any candidate, who is otherwise qualified and joins duty during leave vacancy, which can be considered at par with temporary or ad hoc within the age limit and he continues and becomes agebarred, his case can be considered for age relaxation. Apart from the above, in the present recruitment process for the candidates belonging to a specified class or category namely; SC, ST and SEBC and Physically Handicapped and Exarmymen, the relaxation has been considered by the District Courts up to five years as per the policy prevailing of the State Government for its employees. As per the records submitted during the course of hearing by Mr.Supehia, learned Counsel appearing for the Registrar of High Court, the District Court had considered the age relaxation of the aforesaid category of persons up to five years and the list was so submitted before the High Court on administrative side for approval and it was so approved. Under these circumstances, it can be said that the District Courts, the first authority and the High Court on administrative being the supervisory authority, both have taken decision for age relaxation of the aforesaid specified category in the same manner as the State Government has extended the benefits to the same category for its employees. If the decision is taken by the District Courts or the High Court on administrative side adopting the similar policy for age relaxation for the similar Page 31 of 62 31 of 124 C/SCA/29765/2007 JUDGMENT category of candidates being State Government employees, such cannot be said to be arbitrary or unreasonable and the reason being that the State Government for its employees has extended the benefits and such is reflected by the statutory Rules framed by the Government. If any authority on administrative side is guided by the statutory Rules framed in respect of other employees, who are more or less similarly situated, the decision cannot be said to be per se arbitrary, unless any satisfactory material is produced that the power was so exercised to show a special favour for a particular category of candidates with extraneous consideration. Such is not the factsituation, nor there is any allegation made by the petitioner in the event that the decision of the competent authority to grant age relaxation at par with the decision in respect of the State Government employees was arbitrary or otherwise. Hence, it can be said that the decision of the District Court and the approval thereto by the High Court for grant of age relaxation to the candidates of aforesaid reserved categories up to five years would not be arbitrary, since such policy decision is taken in line of the other Government servant, who are under the control of the State Government.

18. The next aspect, which may be required to be examined is whether the further age relaxation considered, i.e., exceeding five years in respect Page 32 of 62 32 of 124 C/SCA/29765/2007 JUDGMENT of four candidates, who were working in the establishment of the District Courts or in the establishment of the Gujarat State Legal Services Authority, can be said to be arbitrary or not. As per the record submitted by the learned Counsel Mr.Supehia in the list, in all, there were 11 candidates, in respect of whom the age relaxation was suggested by the District Court, out of which, in respect of one candidate at Sr. No.70 - Thakkar Rupalben Shankerbhai, her name was deleted, as she was overaged. Therefore, in effect, there were in all 10 candidates, for whom age relaxation was considered and recommended by the District Court to the High Court for approval. Out of those 10 candidates, one Mr.T.D. Jain did not join the duty and, therefore, the question may be required to be considered for only 9 candidates for whom age relaxation was recommended and ultimately approved by the High Court. The detail of those 9 candidates as per the record submitted by Mr.Supehia on behalf of the learned District Judge is as under: Sr Name of Date of birth Date of Date of Remarks Assistant joining at joining the GSLSA, District Ahmedabad Court, Dahod as (ad hoc) assistant Page 33 of 62 33 of 124 C/SCA/29765/2007 JUDGMENT 1 Mr.R.B.Patel 11.10.1977 07.04.1999 11.08.2004 At present, deputed at Labour Court, Dahod as Gujarati Stenographer Gr.II 2 Ms.G.T.Gajjar 17.04.1972 25.12.2001 11.08.2004 She is transferred as Inter District at Metropolitan Magistrate Court, Ahmedabad 3 Mr.M.J.Saiyed 29.04.1974 07.07.1999 11.08.2004 4 Mr.V.P. Jha 06.05.1978 07.04.1999 11.08.2004 5 Mr.M.M.Shaikh 16.09.1978 07.05.1999 11.08.2004 6 Mr.R.L.Desai 29.10.1974 14.07.1999 11.08.2004 He expired on 28.2.2013 7 Ms.A.B.Trived 19.11.1972 10.01.2002 11.08.2004 i 8 Mr.R.M.Pirzad 17.07.1974 30.10.2001 11.08.2004 a 9 Mr.N.D.Dabhi 27.05.1976 16.09.1999 11.08.2004

19. The aforesaid detail shows that the age relaxation was considered and recommended in respect of aforesaid 9 persons, since they were in service with the Gujarat State Legal Services Authority since 1999 or 2001 or 2002 as the case may be. On 30th September, 2004, the Standing Committee of the High Court on administrative side had taken following decision: "Resolved that requests made by regular employees of District Courts, Bharuch, Valsad, Rajkot, Surat, Surendranagar and Sabarkantha, who have opted for respective posts on the establishment of newly created District Court, Dahod, be considered, where District Judge has given consent, on condition that they shall be placed below the employees of Panch Mahals, transferred and posted in newly created Dahod Judicial District, in the respective cadre; temporary Page 34 of 62 34 of 124 C/SCA/29765/2007 JUDGMENT and daily wage employees, who have given willingness, be considered taking into account the duration of service rendered by them, for adhoc and temporary employment and also considered with others at the time of regular recruitment giving them age relaxation."

20. The aforesaid shows that the High Court on administrative side had taken decision that the persons working on ad hoc and temporary basis be considered at the time of regular recruitment by giving them age relaxation. The aforesaid decision of the High Court is prior to the advertisement published. It further appears that vide letter dated 27.10.2004 of the Registrar of the High Court, certain employees, who were working on temporary and ad hoc basis with the Gujarat State Legal Services Authority, Ahmedabad were directed to be appointed as clerk and peon in the set up of District Court establishment at Dahod, since Dahod District was newly formed and in the very letter, it was mentioned as under: "I am further directed to request you to consider the above named employees with others at the time of regular recruitment by giving age relaxation."

21. The aforesaid two communications show that the policy decision was taken by the High Court for grant of age relaxation for employees working on temporary basis in the set up of Dahod District Court and certain employees working with the Gujarat State Legal Services Authority, who Page 35 of 62 35 of 124 C/SCA/29765/2007 JUDGMENT were subsequently given appointment on temporary and ad hoc basis in Dahod District were also to be considered for grant of age relaxation. It has been contended on behalf of the High Court administration that it is on account of the aforesaid policy decision of the High Court, age relaxation was recommended by the District Court in respect of the aforesaid 9 persons and it has been so approved by the High Court on administrative side. It is not in dispute that those employees at the time of recruitment process were not working with the set up of the District Court, Dahod, but the contention of the learned Counsel for the petitioners is that they were initially not appointed as temporary employees in the set up of Dahod District Court, but they have entered service on ad hoc basis with Gujarat State Legal Services Authority, which is different than the set up of District Court, Dahod. It was, therefore, submitted that the benefits of age relaxation could not be given to these 9 employees. In our view, the contention is on a wrong premise, inasmuch as the case of those 9 persons are to be considered as was prevailing on the date of advertisement. When on the date of advertisement, they were already working as temporary and ad hoc in the set up of Dahod District Court and when Standing Committee of High Court had taken decision for grant of age relaxation to the employees working as temporary and ad hoc in Dahod District Court Page 36 of 62 36 of 124 C/SCA/29765/2007 JUDGMENT at the time of regular recruitment, such persons can be said as similarly situated with the other persons, who were given appointment in the District Court for the first time when Dahod District was formed or who were subsequently given appointment as temporary and ad hoc in the set up of Dahod District Court. When similar treatment has been given to the persons similarly situated, it cannot be said that any discriminatory treatment is given in the matter for grant of age relaxation.

22. Attempt to contend that the High Court would not, on administrative side, grant age relaxation in an arbitrary manner, cannot be countenanced for two reasons; one is that the decision of the High Court to grant age relaxation or the decision of the District Court to recommend for age relaxation and ultimate approval for age relaxation by the High Court is essentially a policy matter to be decided by the competent authority or the highest authority, which is High Court, in the present case, on administrative side. The decision of the High Court on administrative side to grant age relaxation is not under challenge in the petition on the ground that the High Court has no power to grant age relaxation or that the action of the High Court for grant of age relaxation is without any authority under the law. No prayers are made to that effect. Even if it is considered for the Page 37 of 62 37 of 124 C/SCA/29765/2007 JUDGMENT sake of examination that the petitioner could raise such a contention while assailing the action for preparation of the select list, then also as observed by us herein above, under Article 235 of the Constitution the power vests to the High Court to decide the method, mode and the manner of recruitment process, which would include the fixation of eligibility criteria, including the qualification, upper age limit, or the power for making relaxation therein. The second reason is that the High Court while exercising the administrative power for grant of age relaxation has not given any discriminatory treatment, but similar age relaxation has been granted in respect of all the persons similarly situated. It is true that the petitioner is not falling in that category, but even if such action is tested with constitutional mandate of Article 14, when similar treatment is given to all similarly situated persons, no vice can be found therein. Hence, the contention fails.

23. In view of the aforesaid observations and discussion, it cannot be said that the decision taken for recommending the age relaxation and its approval by the High Court for grant of age relaxation to certain candidates is arbitrary as sought to be canvassed.

24. The aforesaid would lead us to examine the aspect of challenge to the select list on the Page 38 of 62 38 of 124 C/SCA/29765/2007 JUDGMENT ground of favouritism and nepotism. The petitioner has made allegation that in all there were 32 candidates, who were relatives of various persons working in the set up of District Court, Dahod or subordinate thereto. In the said list, the petitioner has alleged that certain candidates were relatives of other Court staff and judicial officers working in the other Districts of Gujarat State. The allegation of the petitioner is that on account of their relatives working in the same district or another district of Gujarat State as Court staff or judicial officer, they have been favoured for inclusion in the select list and, therefore, the inclusion of their names in the select list is illegal. The aforesaid list can be bifurcated into three categories of persons; one for whom the allegation is that the relatives were working in the other Court of other District, including certain staff of the High Court; second category is of the persons, whose relatives were working in the set up of the District Court at Dahod and the third category is that the persons, who were relatives of the District Judge himself. We will examine the cases categorywise, but before we proceed to examine the said aspect, we may consider the averments made in the petition and also the process undertaken for preparation of the select list and the persons, who played role in the same. The petitioner in the petition at paragraph 12 has alleged as under: Page 39 of 62 39 of 124 C/SCA/29765/2007 JUDGMENT "12. The petitioner further states and submits that the selection list also suffers from the vice of nepotism and favourism, as some of the candidates are the nearest relatives of the Judges discharging their duties in Dahod District Court. The petitioner states and submits that some of the persons who have found place in the selection list were declared as failed in the written examination, though interview call letters issued and ultimately their names form part of the select list."

25. As per the petitioner, in furtherance to the aforesaid statement made in the petition, the above referred list at AnnexureJ on page 32D has been submitted. The important aspect is that the petitioner has not joined any of the so called relatives of any candidate as party respondent, except the Principal District Judge in his official capacity and not in his individual capacity. If the matter is considered as it is, in absence of those persons, who are alleged to have influenced the selection process, this Court would not be in a position to conclude as to whether those persons had influenced the selection process or not. It is by now well settled that if the allegation of mala fide is made against any person, may be in individual capacity or may be in official capacity, such persons by name in the respective capacity is required to be joined as party. Further, no details about the manner in which the influence has played the role in the selection process is Page 40 of 62 40 of 124 C/SCA/29765/2007 JUDGMENT averred by any of the petitioners. No proof is produced to show that the socalled candidate was or is in relation with the other person. Hence, it can be said that the allegation of mala fide as such cannot be accepted in absence of the necessary party and the allegations can also not be accepted, since they are vague and without there being any proper material for supporting the allegations.

26. We may now further examine the allegation categorywise. No material is produced in the record of this Court as to how the socalled relatives of certain candidates working outside Dahod District have played any role to influence the recruitment process and competent authority undertaking the recruitment process. For the second category of the persons also no details are mentioned that those persons, who are said to be the relatives of the candidates have played any role in the recruitment process. At this stage, we may record that as per the advertisement for the post of Junior Clerk, there were written tests and thereafter typewriting tests and thereafter shorthand test for Stenographer or oral interview to be undergone by concerned candidates for different posts. In any case, written test and oral interview were the process of selection. It is for the petitioner to demonstrate before the Court by satisfactory material that the written test was conducted by a Page 41 of 62 41 of 124 C/SCA/29765/2007 JUDGMENT particular person and his relative had appeared in that written test and he had played any role, since such person was working in the District Court set up of Dahod. Neither any specific allegation is there, nor any material is produced before the Court. However, this Court did inquire from Mr.Supehia appearing for the High Court on administrative side as well as for the learned District Judge, Dahod and he has stated before the Court that none of the persons, who are stated to be relatives working in the District Court, Dahod had played any role in the written examination or oral interview at the time of selection of the candidates. Therefore, in our view, the challenge made for the first and second categories of the candidates cannot be sustained.

27. The cases of the matter for third category of the candidates, who were alleged to be relatives of the then District Judge at the time of selection deserves consideration. It is true that the District Judge by name is not impleaded as party, but he has been joined in official capacity as District Judge, Dahod. The allegation in the petition read with the details as mentioned at AnnexureJ is that three candidates were in relation with the then District Judge at the time of selection namely; (1) Mr.Parmar Bharatbhai Bhailalbhai, who is alleged to be son of real brother of District Page 42 of 62 42 of 124 C/SCA/29765/2007 JUDGMENT Judge, Shri R. M. Parmar; (2) Mr.Parmar Mehulsinh Maganbhai, who is alleged to be the son of the sister of father of Shri R. M. Parmar; (3) Ms.Parmar Khusbu Harivadanbhai, who is alleged to be the daughter of the sister of the wife of Shri R.M. Parmar. All the three candidates are joined as party respondents. It was submitted by Mr.Supehia, learned Counsel appearing for the Registrar of the High Court and the District Judge that the interview committee comprised of District Judge Shri R. M. Parmar, Shri J.K. Gandhi, Additional District Judge and Shri R.M. Desai, Principal Sr. Civil Judge. Since there is no allegation by name of the other members of the selection committee, but the allegation remained for the District Judge Shri R. M. Parmar and as all the aforesaid three candidates were joined as party respondents in the present proceedings, upon further inquiry by the Court, Mr.J.F. Mehta, learned Counsel appearing for Mr. Parmar Bharat Bhailalbhai, stated under the instructions of his client, and rather admitted that his client Parmar Bharat Bhailalbhai is son of the brother of Shri R.M. Parmar, the then District Judge. The another candidate Parmar Mehul Maganbhai, who is also stated to be relative of Shri R.M. Parmar has filed affidavit, declaring that he, directly or indirectly, is not in any relation with Shri R.M. Parmar. There is no evidence to the contrary. Hence, the allegation made by the petitioner cannot be accepted qua Parmar Mehul Page 43 of 62 43 of 124 C/SCA/29765/2007 JUDGMENT Maganbhai. The third candidate Ms.Parmar Khusbu Harivadanbhai is represented through Mr.T. R. Mishra. Mr.Mishra, under the instructions of Ms.Parmar Khusbu Harivadanbhai, who is stated to be present in the Court, did admit that she is the daughter of the sister of the wife of Shri R.M. Parmar, but he further stated that as she had married outside her caste with one Shri Gohil, she was boycotted, inasmuch as nobody in the family of her father or mother had maintained any relation and, therefore, she did not state the relation with any Court staff in the application. So far as Mr.Parmar Bharatbhai Bhailalbhai is concerned, he has also not mentioned the relation with Shri R.M. Parmar.

28. The aforesaid shows that the above referred two candidates; respondent Nos.19 and 24 were in close relation with the then District Judge, who was one of the Members of the Interview Committee. However, Mr.Supehia, learned Counsel for the Registrar of the High Court declared that the then District Judge has not played any role in the written test or the typing test of the aforesaid two persons, but he fairly submitted that the role was played as the Member of the Interview Committee by the said District Judge. Mr.Supehia attempted to contend that too poor marking in the interview or average marking in the interview to the extent of 50% was given by the then District Judge, who played role in the Page 44 of 62 44 of 124 C/SCA/29765/2007 JUDGMENT selection committee and, therefore, in his submission even if the marking given by the other two Members of the interview Committee were only considered and averaged out for the selection, such may not make material difference, since both the aforesaid candidates were much above in the merit list based on their performance in the written test as well as marking given by the other two members of the selection committee. However, Mr.Supehia candidly admitted that the question of deemed bias would arise, since the then District Judge was in close relation with the candidates, who were interviewed by him and he was one of the Members of the Committee.

29. Considering the fact that respondents no.19 and 24 were in close relation with the then District Judge, who was member in the interview committee and considering the above referred fact situation, we find that as there is no material whatsoever for any role played by the then District Judge in the written test or typing test of the candidates concerned, the merit so assessed of respondents no. 19 and 24 at the written test or typing test cannot be said to be with any bias or malafide. We are inclined to make such observations because the declaration as referred to hereinabove made by the Registrar of the High Court that the learned District Judge has not played any role directly in conducting of the written examination and typing test since the Page 45 of 62 45 of 124 C/SCA/29765/2007 JUDGMENT merit at that level was to be assessed by the persons other than the learned District Judge. Further no other material is produced on behalf of the petitioner showing otherwise. Therefore, taking into consideration the aforesaid peculiar circumstances, we find that the allegation for malafide or favouritism at the written test examination or typing test examination even for respondents no.19 and 24 cannot be accepted.

30. But, such may not hold good for the merit secured by the aforesaid both the candidates at the oral interview since it is an admitted position that the then District Judge was close relative of respondents no.19 and 24, who participated in the interview. In our view, whether the learned District Judge gave average marking to both the candidates who were his relatives or not is not an aspect which would nullify the effect of bias or deemed bias. In any public employment, transparency and purity in the process of recruitment is to be maintained by all concerned. If one is close relative of any of the candidate, it is expected for him to recuse himself in the process qua such candidate. In our view, in order to maintain sanctity in the selection process, such would be required and expected from any authority undertaking the selection process, may be at the written test level or may be at the interview level.

31. As observed by us hereinabove, in absence Page 46 of 62 46 of 124 C/SCA/29765/2007 JUDGMENT of any material satisfactorily demonstrated before this Court about the role played in the written test or typing test, it may not be possible for us to read the principles of deemed bias to that extent. However, in the interview committee, when the then District Judge was member and rather Chairman of the interview committee, principles of deemed bias would apply and it can be said that the merit secured by those two candidates at the interview would get vitiated and no sanctity can be attached to such marking of the interview committee which includes the marking given by the then District Judge, who was close relative of the candidate concerned. At this stage, we may make useful reference to the decision of the Apex Court in the case of HC Puttaswamy and others vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others reported in AIR 1991 SC 295, wherein the question that arose for consideration before the Apex Court was about certain appointments made by the then Chief Justice of the High Court of certain candidates in excess of the post advertised and also with the allegation that such appointments were contrary to the statutory rule. The Apex Court at paras 10 and 11, observed thus "10. While the administration of the Courts has perhaps never been without its. critics, the method of recruitment followed by the Chief Justice appears to be without parallel. The learned Judges of the High Page 47 of 62 47 of 124 C/SCA/29765/2007 JUDGMENT Courts have in a considered judgment allowed the writ petitions and quashed all those appointments. They have expressed the view that the appointments made by the Chief Justice were very serious violation of statutory law and constitutional protection of equality of opportunity guaranteed to the candidates under Articles 14 and 16(1).From the foregoing narration of events and by the rules of recruitment, it seems to us that there cannot be two opinions on the conclusion reached by learned Judges. The methodology adopted by the Chief Justice was manifestly wrong and it, was doubtless deviation from the course of law which the High Court has to protect and preserve.

11. The Judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the Judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively they are not trivial. They constitute, in our opinion, a substantial part of the mosaic which represents the ordinary man's perception of what the Courts are and how the judges go about their work. The Chief Justice is the prime force in the High Court.Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by Page 48 of 62 48 of 124 C/SCA/29765/2007 JUDGMENT the Chief Justice. The object of this Article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethoes and traditions of his calling.We need hardly say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard of ethical and intellectual rectitude. The public expectations do not seem to be less exacting."

32. The aforesaid shows that as observed by the Apex Court, the judiciary while acting on administrative side, has a duty to ensure that in the functioning carried out by it, the principles and values as those of the Court are required to be maintained. Judiciary cannot depart from and indeed must remain committed to the constitutional ethos and traditions of his calling. The conduct of the judiciary even on administrative side must necessarily be to maintain the higher standard of ethical and intellectual rectitude. Hence, we cannot Page 49 of 62 49 of 124 C/SCA/29765/2007 JUDGMENT countenance the participation by judicial officer in a selection process where his or her close relative is to appear or the merit of his or her close relative is to be assessed. We may record that the principles of deemed bias has an exception of doctrine of necessity. But neither such doctrine is pleaded nor any material is demonstrated before the Court for such purpose. Under the circumstances, we find that the merit secured by respondents no.19 and 24 at the interview would not meet with the test of Articles 14 and 16 in a matter of public employment. Consequently, the merit secured by both the aforesaid candidates would be required to be quashed and set aside.

33. Mr.Supehia, learned counsel appearing for the Registrar of the High Court and the District Court contended that those candidates were much above in the merit list based on the written test and by now, they have undergone the services of about 9 years and therefore, they have become age barred if they have to apply for the fresh recruitment. He submitted that as was considered by the Apex Court in the case of HC Puttaswamy (supra) on humanitarian consideration, Court may allow their appointment to continue instead of fresh selection even in the interview. He pressed in service the observations made by the Apex Court in the above referred decision in the case of HC Puttaswamy (supra) at paragraph 16 for applying the rule of mercy. Such prayer was also Page 50 of 62 50 of 124 C/SCA/29765/2007 JUDGMENT made by Mr.Mehta as well as Mr.Mishra appearing for the respondents no.19 and 24 respectively.

34. In furtherance to his submission, the learned counsel Mr. Supehia as well as Mr.Mehta and Mr.Mishra relied upon the decision of the Apex Court in the case of Girjesh Shrivastava and Ors. vs. State of Madhya Pradesh and Ors. reported in (2010) 10 SCC 707, wherein the High Court had set aside the entire selection process instead of bifurcating the vitiation of the selection for a particular category of the candidate. It was submitted that in the said decision, the Apex Court made observations at paragraph 31 for balancing of equities of the candidate who played role in the selection process. In our view, even as per the said decision of the Apex Court in the case of Girjesh Shrivastava (supra), what has been held by the Apex Court is that if the selection of a particular category of the candidate was found to be bad, the matter could further be considered for that particular category and the entire select list could not be set aside. We do not find that such decision would apply to the facts of the present case since in the present case, as per the discussion made hereinabove, the categorywise bifurcation of the candidates has already been undertaken by us and the vitiation of the selection for the assessment of the merit is found at the interview level only, but qua respondents no.19 and 24.


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35. Mr.Chaudhary, learned counsel appearing for the concerned petitioner relied upon the decision of the Apex Court in the case of Renu and others vs. District and Sessions Judge, Tis Hazari and Anr. reported at 2014 (3) SLR 1 (S.C.) equivalent 2014 (2) SCALE 262 and submitted that the High Court has to strictly adhere to the statutory rules and the appointment made in contravention to the statutory rules would be void ab initio irrespective of any class of post or person occupying it. He submitted that if the selection is found to be bad by this Court even in respect of certain candidates, the whole select list should be set aside and not qua respondents no. 19 or 24 only.

36. As observed by us hereinabove, it is not a matter found by us that the High Court while granting age relaxation has acted in contravention to any statutory rule. Therefore, as such, the said decision in the case of Renu and others (supra) will be of no help to the petitioner. The contention raised for setting aside of the entire select list also cannot be accepted for the simple reason that the other candidates in respect of whom no illegality is found, cannot be made to suffer merely because in respect of respondents no.19 and 24, this Court found that in the interview level the principles of deemed bias would apply and the selection would be vitiated. Hence, we cannot countenance Page 52 of 62 52 of 124 C/SCA/29765/2007 JUDGMENT the submission that the entire select list deserves to be set aside. The only aspect now will be required to be considered is the effect upon the selection of respondents no.19 and 24 which includes merit secured at the written test as well as the merit secured at the interview.

37. At this stage, we may refer to the decision of the Apex Court in the case of Anamica Mishra v. UP Public Service Commission, Allahabad reported in AIR 1990 SC 461 and the observations made by the Apex Court at para 4, reads as under:

"4.We have heard counsel for the parties and are of the view that when no defect was pointed out in regard to the written examination and the sole objection was confined to exclusion of a group of successful candidates in the written examination from the interview, there was no justification for cancelling the written part of the recruitment examination. On the other hand, the situation could have been appropriately met by setting aside the recruitment and asking for a fresh interview of all eligible candidates on the basis of the written examination and selecting those who on the basis of the written and the freshlyheld interview became eligible for selection."

38. The above observations show that when no defect was pointed out in regard to the written examination and the objection is found confined to the interview, there would not be any justification for cancelling the written part of the examination. It has been further observed that the situation could have been appropriately Page 53 of 62 53 of 124 C/SCA/29765/2007 JUDGMENT met by setting aside the recruitment and asking for fresh interview of the eligible candidates on the basis of the written test.

39. We may also make useful reference to the another decision of the Apex Court in the case of Bishnu Biswas & Ors. V. Union of India and Ors. reported in JT 2014 (4) SC 462, wherein at paragraph 20, it was observed thus "20. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50% for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so called selected candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago."

40. The aforesaid shows that the Apex Court when had found that if the whole selection is scrapped, most of the candidates would be Page 54 of 62 54 of 124 C/SCA/29765/2007 JUDGMENT ineligible at least in respect of age as the advertisement was issued more than 6 years ago. We may record that in the present case, it is about more than 9 years ago. Further, in the said case, the Apex Court did not interfere with the direction of the High Court to continue the select list from the point at which it stood vitiated.

41. If the facts of the present case are considered further in light of the above referred two decisions of the Apex Court, we find that the merit secured by both the candidates, i.e., respondents no.19 and 24, in the written test does not deserve to be interfered with. However, the merit secured at the interview, since is vitiated, would be required to be set aside. It is true that in the select list, which is so published, there is consolidation of the marks secured by the candidates at the written test as well as at the oral interview and thereafter, as per the merit order, common select list is prepared. The name of the respondent no.19 is at Sl.No. 6 and in the SC category whereas the name of the respondent no.24 is at Sl.No.17, that too in the SC category out of the total list of 148 candidates. Appointment is offered to the candidates upto Sl.No.80 and as no relaxation is given in the merit of any candidate irrespective of their category as general, SC, ST or SEBC, the last candidate in merit was at Sl.No. 80, and the average marks obtained is 130 out of 200.


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Further, at the written test, the merit of respondent no.19 was 74% whereas, of respondent no.24 was 70%. As observed by us hereinabove, the merit secured by both the candidates at the written test is not interfered with. However, the further merit secured by the said candidate at the oral interview shows that respondent no.19 secured 38 average marks whereas respondent no.24 secured 54 average marks out of 75 marks. In our view, if the merit secured at the oral interview is set aside, the consequence would arise that the merit of respondents no.19 and 24 at the interview may be required to be undertaken by the committee in which any of the close relative of both the candidates is not there as member. What shall be the formation of the committee for the purpose of interview need not be finalised by us but considering the facts and circumstances, we find that it would be just and proper to leave it to the Registrar of the High Court to decide on administrative side since it has been stated that Mr.R.M. Parmar, the then District Judge has retired from service. The said committee so formed by the Registrar of the High Court may reassess the merit of respondents no.19 and 24 and thereafter, their merit will have to be adjusted after considering the marks secured by both the candidates at the written test. If ultimately, it is found that the average marks obtained by respondents no. 19 and 24 are below the marks obtained by the last candidate Ms. Page 56 of 62 56 of 124 C/SCA/29765/2007 JUDGMENT Dabhi Rajeshri Dhirajlal of 130, the services of respondents no.19 and 24 will be required to be terminated. In the event it is found that respondents no. 19 and 24 after considering the marking at the fresh interview have secured average marks exceeding 130, their appointment may be retained but with readjustment of the merit order in the select list. Consequently, it may also affect their seniority in the list.

42. In any case, the appointment already made based on the merit secured at the interview, if set aside, and if respondents no.19 and 24 secure marks less than the merit of the last candidate at Sl.No.80, their services would come to an end. But in the event if they secure average marks of 130 or more than 130 after fresh interview, their services may be retained, but the period during which they have worked from the date of appointment till the fresh interview are concluded and the merit is considered and finalised, will be required to be considered by the appointing authority for the purpose of regularisation. Considering the facts and circumstances, we find that even on mercy and humanitarian consideration, the status of respondents no.19 and 24 can be considered to that extent only.

43. It is true that in the observations made by us hereinabove, the learned District Judge has not recused himself from the interview process, Page 57 of 62 57 of 124 C/SCA/29765/2007 JUDGMENT but at the same time, as observed by us hereinabove, he has not been joined as party respondent in his individual capacity. The affidavit has been filed by the Registrar of the District Court and not by Shri R.M.Parmar, as the then District Judge. Therefore, we refrain from making any further comment on the said aspect except observing that the learned Judge should have been more careful to keep himself away from the process where his close relatives were associated. We leave at that since it has been stated that the said District Judge has already retired.

44. In view of the aforesaid observations and discussions, it is ordered and directed that the merit secured by respondents no.19 and 24 at the interview for the post of Junior Clerk in the set up of District Court, Dahod pursuant to the advertisement dated 21.06.2005 is set aside with the further direction that merit of respondents no.19 and 24 shall be reassessed by the advisory committee as per the executive instructions of 1957 referred to hereinabove from the stage of oral interview. The said advisory committee shall be formed by the Registrar of the High Court, wherein none of the close relatives or relatives of respondents no.19 and 24 shall remain as the member of the interview committee. It is further observed and directed that such committee shall undertake the process of assessment of merit of respondents no.19 and 24 Page 58 of 62 58 of 124 C/SCA/29765/2007 JUDGMENT at the interview afresh and the marking shall be given. After the marks secured by respondents no.19 and 24 at the aforesaid interview, the competent authority shall decide as to whether both the candidates or any of the candidates have/ has secured higher marks or equivalent marks in comparison to the merit of the last candidate at Sl.No.80. If respondents no.19 and/or 24 secure merit less than the merit of the last candidate at Sl.No.80, their appointment shall stand terminated. It is further observed and directed that in the event respondents no.19 and/or respondent no.24 secure merit above or equal to the merit of the last candidate at Sl.No.80, their appointment shall be continued, but subject to the readjustment of their names in the merit order and their appointment shall stand as regular appointment for the prospective period but with the rider that respondents no.19 and 24 shall not be in a position to march over the merit of other candidates. As regards the period from the actual appointment in the year 2005 till the aforesaid process is completed, the matter shall be considered on administrative side by the competent authority for regularisation of the period, but with the further clarification that even if such period is regularised, their seniority will stand as per their merit order in the select list prepared after undertaking the above referred fresh interview and not as per their merit order in the earlier select list.




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45. The aforesaid process shall be completed by respondent nos.1 and 2 within a period of 3 months from the receipt of the order of this Court. Until the aforesaid direction is complied with, status quo qua service conditions of respondents no.19 and 24 shall be maintained, but after compliance of the directions, consequence in law, as directed hereinabove, shall follow. The selection made of the other candidates is not interfered with.

46. Special Civil Application No.29765/07 shall stand partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.

47. In Special Civil Applications No.29861/07 and 29862/07, there are too vague and too general allegations on the ground of favouritism and napotism for the post of Peon for which no details are mentioned nor the persons who have played role are impleaded as parties and therefore, we do not find that any case is made out for interference in the select list prepared for the post of Peon. The contentions raised by petitioners of Special Civil Application No.29861/07 that his name was shown in the earlier list and subsequently, deleted in the second list appears to have been made on account of the mistake detected by the competent authority since the said petitioner was age barred. It is not the case of the said Page 60 of 62 60 of 124 C/SCA/29765/2007 JUDGMENT petitioner that he was similarly situated with the other employees working on temporary basis in the set up of District Court, Dahod. Further, the District Court has not recommended for age relaxation for any of the candidates whose names were included in the select list for the post of Peon on the ground that they were working in the set up of District Court, Dahod nor any such age relaxation was considered by the High Court on administrative side when the approval to the select list was granted. So far as petitioners of Special Civil Application No.29862/07 is concerned, his name was not there even in the first list. Therefore, such contention would not survive for him.

48. In our view, examining the case in either way, it cannot be said that the petitioners have been able to successfully demonstrate before the Court that the selection list prepared for the post of Peon was illegal or arbitrary or there was any favouritism or nepotism, save and except to a limited extent in Special Civil Application No.29765/07 considered to by us hereinabove in the earlier part of the judgment. Hence, we find that Special Civil Applications No.29861/07 and 29862/07 deserves to be dismissed. Hence, dismissed. Rule discharged. Considering the facts and circumstances, no order as to costs.



                                       (JAYANT PATEL, J.) 



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                                          (Z.K.SAIYED, J.) 
bjoy




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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 29765 of 2007 With SPECIAL CIVIL APPLICATION NO. 29861 of 2007 With SPECIAL CIVIL APPLICATION NO. 29862 of 2007 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

============================================================== NIRKITABEN MOHITKUMAR SONI THRO'POA MOHITKUMAR N SONI....Petitioner(s) Versus REGISTRAR HONOURABLE HIGH COURT OF GUJARAT &

83....Respondent(s) ============================================================== Appearance:

HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 MR R G CHAUDHARY, ADVOCATE for the Petitioner(s) No. 1 DELETED for the Respondent(s) No. 9 10 , 15 17 , 30 31 , 37 , 49 , 54 , 58 59 , 62 65 , 68 , 72 , 77 79 , 84 DS AFF.NOT FILED (R) for the Respondent(s) No. 23 , 56 MR TR MISHRA, ADVOCATE for the Respondent(s) No. 18 , 23 24 , 27 28 , 39 , 42 43 , 46 , 50 , 52 , 60 , 74 , Page 1 of 62 63 of 124 C/SCA/29765/2007 JUDGMENT 80 NOTICE SERVED BY DS for the Respondent(s) No. 20 RULE SERVED for the Respondent(s) No. 2 RULE SERVED BY DS for the Respondent(s) No. 18 , 24 29 , 33 , 35 36 , 38 43 , 46 , 50 , 52 , 55 , 60 , 74 , 80 UNSERVEDREFUSED (N) for the Respondent(s) No. 35 LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 1 2 MR ANAND L SHARMA, ADVOCATE for the Respondent(s) No. 6 MR AS SUPEHIA, ADVOCATE for the Respondent(s) No. 1 2 MR ASHISH B DESAI, ADVOCATE for the Respondent(s) No. 56 MR JF MEHTA, ADVOCATE for the Respondent(s) No. 3 5 , 7 8 , 11 14 , 19 , 21 22 , 32 , 34 , 36 , 44 45 , 47 48 , 51 , 53 , 57 , 61 , 66 67 , 69 71 , 73 , 75 76 , 81 83 MR MP PRAJAPATI, ADVOCATE for the Respondent(s) No. 26 , 29 , 33 , 38 , 40 41 MR PJ KANABAR, ADVOCATE for the Respondent(s) No. 55 ============================================================== CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 15,16,17 & 18/07/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. As in all the matters, the questions are interconnected and common issues arise for consideration pertaining to recruitment for the post of Clerks and Peons in the set up of subordinate courts of Dahod district, they are being considered simultaneously.

2. The short facts of the case appears to be that the advertisement dated 21.06.2005 was published by the Principal District Judge of Dahod District Court (hereinafter referred to as "District Court" for the sake of convenience) Page 2 of 62 64 of 124 C/SCA/29765/2007 JUDGMENT inviting applications for the post of Assistant (Junior Clerk), Librarian, Driver, Peon, etc. As per the said advertisement, the requisite age for the post of Assistant (Junior Clerk), ClassIII was mentioned as not less than 18 years and not more than 25 years on 02.07.2005. There were also other age limits prescribed for different posts, which are not the subject matter of the present proceedings, except that for the post of Peon/Waterman/Jail Warder/Chowkidar, the same age was provided as that for the post of Assistant (Junior Clerk). As per the petitioner of SCA No.29765/07, she applied for the post of Assistant (Junior Clerk). She cleared written test and she was called for interview vide letter dated 14.03.2006 and the interviews were to be held on 27.03.2007. The said petitioner found that her name was not there in the select list and upon further inquiry, she learnt that certain persons, who were appointed purely on adhoc and temporary basis, were also selected. The petitioner further inquired into the matter and found that large number of persons selected were either age barred or they were in relation with other persons working in the set up of District Court and subordinate courts as well as in the other courts of Gujarat State. The petitioner addressed representation to the Hon'ble Chief Justice on administrative side vide letter dated 06.08.2007, but as per the petitioner, as no action was taken, the present petition for Page 3 of 62 65 of 124 C/SCA/29765/2007 JUDGMENT challenging the legality and validity of the select list prepared at the recruitment process.

The said petitioner has prayed that the select list dated 11.07.2007 be quashed and set aside and it is also prayed that appropriate writ be issued to inquire about the ways and method adopted by the respondents to prepare the list of the candidates eligible to apply for the post of Assistant (Junior Clerk) (hereinafter referred to as "Junior Clerk" for the sake of convenience).

3. In Special Civil Applications No. 29861/07 and 29862/07, the petitioners had applied for the post of Peon in response to the very advertisement and the grievance of the petitioners is that their names appeared in the first select list which was prepared and displayed on the notice board. Thereafter, on the next day, another select list was placed on the notice board wherein the name of the petitioners were deleted. The petitioners have also alleged favouritism and nepotism for certain candidates who as per the petitioners were relatives of the District Judge discharging his duties in Dahod district. The allegation is also made that by ignoring age factor, certain persons were selected on the post of Peon. These petitioners have also made the same prayer as made by the petitioner of Special Civil Application No.29765/07 for quashing and setting aside of the select list for the post of Peon and Page 4 of 62 66 of 124 C/SCA/29765/2007 JUDGMENT even inquiry is prayed for the ways and method adopted by the respondents in preparing the list of candidates for the post of Peon. As the names of the petitioners were deleted, they are aggrieved by the said action and hence, the present petitions before this Court.

5. The learned counsel for the petitioners raised two contentions, one is that there were large number of persons included in the select list who were age barred. In their submission, the upper age limit for the post of Junior Clerk as well as for the post of Peon was 25 years and those who were selected for the posts had completed 25 years of age, and therefore, the action would be bad in law. It was submitted that it was not mentioned in the advertisement that relaxation would be available to the employees working as temporary and on adhoc basis with the District Court or with State Legal Aid Page 5 of 62 67 of 124 C/SCA/29765/2007 JUDGMENT Authority. He submitted that in absence of such specific clause in the advertisement, no age relaxation could have been granted by the selection committee. They submitted that as per the decision of the Standing Committee of the High Court, only temporary and adhoc persons working in the set up of District Court, Dahod were entitled to age relaxation and not those who were working on adhoc basis with State Legal Aid Authority. They submitted that under the circumstances, the selection would be bad in respect of those persons who were age barred or those who had already completed age of 25 years at the time of advertisement.

6. The second contention raised by the learned counsel for the petitioners was that there was favouritisim and nepotism in the selection process inasmuch as large number of persons were such whose relatives were either working in the set up of District Court or other subordinate courts of the same district or other courts of Gujarat State. It was also submitted that the then District Judge was member of the selection committee and his own relatives were also selected and as he had participated in the said selection process, the selection would be bad in law. As per the learned counsel, it is a case of favouritism played in the public employment and therefore, the selection is required to be set aside, at least, for those persons who were Page 6 of 62 68 of 124 C/SCA/29765/2007 JUDGMENT either age barred or who were relatives of employees working in the set up of the subordinate courts or the District Court, as the case may be.

7. Whereas, Mr.Supehia, learned counsel appearing for the Registrar of the High Court and District Court, submitted that it is not that in case of large number of candidates, age relaxation has been granted. But as per him, the age relaxation for the post of Junior Clerk was considered and granted in respect of only 11 persons out of them one expired. Hence, only in case of 10 persons, that too on the ground that they were working in the Court set up, may be as a court staff itself or under State Legal Aid Authority. He submitted that for the post of Peon, no relaxation was considered for age. In respect to the grievance made by Mr. Lakhani for the candidates who had applied for the post of Peon, he submitted that the petitioner of SCA No.29861/07 was over aged for the post of Peon and after publication of the list, such mistake was detected and hence, immediately, on the next date, another list was published, wherein his name was excluded. So far as petitioner of SCA No.29862/07 is concerned, Mr.Supehia submitted that his name was not at all there in the first list or any select list and therefore, there was no question of deletion or exclusion of his name in the select list since he was not found fit to Page 7 of 62 69 of 124 C/SCA/29765/2007 JUDGMENT be included in the select list.

8. Mr.Supehia, learned counsel submitted that for the ministerial staff of subordinate courts, the High Court is competent authority for taking appropriate decision for the manner and method of recruitment for such staff. The High Court enjoys such power under Article 235 of the Constitution of India. He submitted that the High Court on administrative side, through Standing Committee, had taken decision in the year 2004 for grant of age relaxation in respect of persons working on temporary and adhoc basis in the setup of District Court, Dahod. Further, as per him, the question of age relaxation was considered even in respect of the persons working on temporary and adhoc basis with the State Legal Aid Authority. In his submission, the High Court on administrative side, had such power to take appropriate decision for age relaxation. He submitted that after undergoing the selection process, the list was forwarded to the High Court on administrative side and in the said list, the aspect of age relaxation for in all 11 candidates, effectively 10 candidates, since one person had expired, was specifically mentioned and the same was duly approved by the High Court. He submitted that in any recruitment process, the bar of age limit is not operating in absolute, but it is coupled with the power of age relaxation. He submitted that in the Rules Page 8 of 62 70 of 124 C/SCA/29765/2007 JUDGMENT framed by the State Government, viz., Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, which are applicable to all the posts of the State from Class I to Class IV for the employees of State Government, there are powers of age relaxation as per Rule 16. He submitted that those Rules are not applicable directly for recruitment process of ministerial staff of the subordinate courts, for District Courts and the High Court. However, as per him, such powers of relaxation in case of Government employees, vest to the Government and similarly, such power would vest to the High Court for age relaxation. As per him, in the executive instructions issued by the then Government of Bombay dated 26.12.1957, after consultation with the High Court, the power for age relaxation has been provided in respect of the candidates working on leave vacancy on temporary basis. As per his submission, even if there is no express power provided by any Rules or in absence of any Rule or executive instruction, the power will vest with the High Court on administrative side under Article 235 of the Constitution of India. As per him, it is not a matter where persons similarly situated are given different treatment since all those persons who were found meritorious, but working in the setup of the District Court or the State Legal Aid Authority, have been granted age relaxation. As per Mr.Supehia, when those persons in respect of whom Page 9 of 62 71 of 124 C/SCA/29765/2007 JUDGMENT age relaxation has been granted were in all 10 and out of those 10 persons, 6 persons were such that they were in the age group of 1825 years when they entered service on temporary and adhoc basis and therefore, they were qualified when they joined service with the District Court and with the State Legal Aid Authority. However, in respect of two persons, Mr. A.B. Trivedi and Mr.R.M. Pirzada, when they were in service on temporary basis, they were aged 30 years and 27 years respectively. Further, in respect of another candidate Ms. G.T. Gajjar, she was aged 29 years when she joined the service, but she was falling in the category of SEBC for which, age relaxation upto 5 years if considered from upper age limit of 25 years, it can be said that she was within the qualified age limit when she joined service as adhoc and temporary employee. He submitted that in the case of Ms. A.B. Trivedi, and Mr.R.M. Pirzada, as they were above the qualified age, such relaxation has been granted at the time when they joined service as temporary and adhoc employees and having taken into consideration such aspects, subsequently, at the time of recruitment for the present advertisement, relaxation was granted treating them at par with the other employees and the age relaxation was recommended which has been so sanctioned by the High Court on administrative side. He submitted that therefore, when all employees working on temporary and adhoc basis Page 10 of 62 72 of 124 C/SCA/29765/2007 JUDGMENT are similarly treated, the decision for grant of age relaxation cannot be termed as arbitrary or illegal. He submitted that as the petitioner of SCA No.29765/07 was not working in the setup of the District Court or State Legal Aid Authority, she would not be entitled to the same treatment nor she can complain about the age relaxation since she was not similarly situated. As per Mr.Supehia, the decision of age relaxation by the competent authority cannot be said as unjust or arbitrary and hence, the select list cannot be set aside on that ground.

10. Mr.Mehta, learned counsel appearing for the said concerned candidate Parmar Bharat Bhailalbhai admitted that the District Judge Shri R.M. Parmar was his real uncle. But he fairly submitted that such aspect is not mentioned in Page 11 of 62 73 of 124 C/SCA/29765/2007 JUDGMENT the application. Mr.Supehia, submitted that if such aspect was not mentioned in the application, the application must have processed as it is. In respect of the another candidate Parmar Mehulsinh, the affidavit has been filed by him declaring that he is not having any direct or indirect relation with Shri R.M. Parmar who was District Judge at the relevant point of time. In respect of the third candidate Ms.Parmar Khusbu Harivadanbhai, Mr.T.R. Mishra, learned counsel under the instruction of his client who is personally present in the court, has declared that the then District Judge Shri R.M. Parmar is the husband of sister of her father Harivadanbhai. Mr.Mishra stated that as on the relevant date his client had married with a non scheduled caste person Abhishek Gohil on 25.11.2003, the relations with her father's family had ceased and therefore, the said aspect was not mentioned in the application form. So far as other candidates are concerned, it was submitted by Mr.Supehia that no material is produced that any of the relatives had influenced any member of the committee in the selection process and hence, on that ground, the selection cannot be said to be vitiated or bad in law.

11. The other learned Advocates appearing for the other candidates, who are selected and joined as partyrespondents, have adopted the submissions made by Mr.Supehia, learned Counsel Page 12 of 62 74 of 124 C/SCA/29765/2007 JUDGMENT for the Registrar of the High Court and the learned District Judge.

12. We may first examine the contention for assailing the selection process on the ground of age relaxation. It is true that in the advertisement, for the eligibility, the age of not less than 18 years and not more than 25 years was provided. However, in the footnote of the advertisement, it was mentioned that for the candidates of scheduled caste, scheduled tribes, socially and educationally backward classes, physicallyhandicapped and exservicemen, the benefits would be extended of the upper age limit as per the prevailing Government Rules. Therefore, it was not a matter, where absolute bar operated on the upper age limit, but the upper age limit for the post in question was subject to the availability of the benefits for relaxation as per the Government Rules. If the recruitment process is for the government employees, in contradistinction to the employees of the subordinate Courts, the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 framed by the State Government in exercise of the power under Article 309 of the Constitution of India would be applicable. As per the said Rules, Rule 16 provides that notwithstanding anything contained in these Rules, the State Government may, in the interest of public service, fill up a post, relax any of Page 13 of 62 75 of 124 C/SCA/29765/2007 JUDGMENT the provisions of these Rules. But the only embargo is that if the post is to be filled up in consultation with the Commission, no such appointment or relaxation shall be granted, except in consultation with the Commission. The aforesaid shows that the State Government, as per the Rules of 1967, has power to relax the provisions of the Rules, but the condition is that it should be in the interest of public service. It is true that the age limits have been provided under the Rules of 1967, but when it has been expressly provided under Rule 16, the power for relaxation under the Rules, such would include the power to relax the upper age in the interest of public service. If the decision of the State Government is to be tested on the ground of arbitrariness or even mala fide, it may be required for the State to satisfactorily demonstrate that the decision to relax the Rules has been taken in the interest of public service. It is hardly required to be stated that if the State Government fails to discharge the said burden, decision of the State Government for relaxation in the Rules may be struck down on judicial side. But, it cannot be said that there are no powers with the State Government under Rule 16 of Rules of 1967 for giving relaxation in the Rules, which would include the relaxation in the upper age. As per Article 235 of the Constitution of India, in respect of employees of District Courts and subordinate Courts, the High Page 14 of 62 76 of 124 C/SCA/29765/2007 JUDGMENT Court has power to control the method, manner and the mode of recruitment of candidates of Class III and IV services in the District Courts and the Courts subordinate thereto. At this stage, we may make useful reference to the decision of this Court in the case of Y.P. Kumpavat and Ors. vs. State of Gujarat and Ors., reported in 2013(3) GLH 1, wherein the High Court on administrative side had taken decision for centralized recruitment of ClassIII and IV employees in the District Courts and Courts subordinate thereto and the High Court had simultaneously taken decision that the waiting list prepared as per the earlier executive instructions is to be scrapped. The said decision was challenged on judicial side in the aforesaid matter. This Court found that the executive instructions could not be equated with the Rules framed by the Governor under Article 309 of the Constitution of India and in absence of any such Rules for the employees of ClassIII in the District Courts and Courts subordinate thereto, the High Court would have the power under Article 235 of the Constitution of India. This Court, in the said decision, at paragraph 57 observed, thus: "57. In view of the aforesaid discussion, our final conclusions in these appeals are as under:

1. The High Court in exercise of its Page 15 of 62 77 of 124 C/SCA/29765/2007 JUDGMENT power under Article 235 of the Constitution of India, can control the method, manner and the mode of recruitment of candidates to Class III and Class IV services in the District Courts and the Courts subordinate thereto, despite the fact that the power to make Rules as to the recruitment and conditions of service of the employees of the subordinate courts vests in the State Government;

4. The High Court was not obliged in law, before formulating a policy to have a centralized recruitment process, to recommend the Government for making necessary amendments in the administrative instructions as contained in the Resolution of 1957, as the High Court should not be asked to run to the Page 16 of 62 78 of 124 C/SCA/29765/2007 JUDGMENT Government in all such matters as the Rules, if any, framed with regard to the members of such establishments, either administratively or under Article 309 of the Constitution, must be so read as to make them consistent with the administrative superintendence or control jurisdiction of the High Court under the Constitution;

13. The aforesaid shows that if there are statutory Rules framed for a particular mode of recruitment or for any Recruitment Rules for upper age limit and no power is available for relaxation in the upper age limit, such would be binding to the High Court on administrative side and so will be for any authority, may be at the District Court level or at the subordinate Court level, undertaking the recruitment process, but in absence thereof, the High Court on administrative side will have power under Article 235 of the Constitution of India to take appropriate decision for the mode, manner and method of recruitment of the employees of the District Courts and the Courts subordinate thereto. As observed by us herein above, Rules of 1967 are for the government employees, who are under the control of the State Government and Page 17 of 62 79 of 124 C/SCA/29765/2007 JUDGMENT such Rules are not applicable to the employees of ClassIII and IV services in the District Courts and Courts subordinate thereto for the recruitment process. It is a different matter that the High Court on administrative side may adopt the same procedure or may exercise same or similar power while undertaking the recruitment process. Under these circumstances, in absence of any statutory Rules framed by the Governor in exercise of the power under Article 309 of the Constitution of India, the High Court on administrative side under Article 235 of the Constitution of India will be the final authority for taking any policy decision in respect of the method, manner and mode of recruitment of candidates for ClassIII and IV services in District Courts and Courts subordinate thereto.

14. The learned Counsel for the petitioner did contend that the Rules of 1957, which has been referred to even in the aforesaid decision of this Court in the case of Y.P. Kumpavat and Ors. vs. State of Gujarat and Ors. (supra) did not provide for absolute power for relaxation and, therefore, it was submitted that the decision of the High Court even on administrative side for relaxation, if accepted, would be bad in law. We may, at this stage, refer to another decision of this Court in LPA No.231 of 2014 and allied matters dated 26.6.2014, wherein one of the contentions raised on behalf of the appellant Page 18 of 62 80 of 124 C/SCA/29765/2007 JUDGMENT therein was that the decision of the High Court on administrative side to scrap the select list already prepared in the year 2005 is in contravention to the Rules, which were framed vide Resolution dated 26.12.1957. This Court in the said decision, after extracting the view taken by another Division Bench of this Court in the case of Kumpavat and Ors. vs. State of Gujarat and Ors. (supra) observed at paragraphs 6 to 10 as under: "6. The contentions are raised is on wrong premises, inasmuch as, the executive instructions, which are titled as "Rules" by the learned Counsel are, in fact, no Rules but only executive instructions issued by the State Government in consultation with the High Court at the relevant point of time, in the year 1957. No statutory Rules were framed in exercise of power under Article 309 of the Constitution by the Governor. In the above referred decision of the Division Bench of this Court in LPA No.794 of 2013 and allied matters, at paragraph 12(i), while examining the controversy, this Court had recorded, thus: "12. Having heard the learned counsel for the respective parties and having gone through the materials on record, in our opinion, the following questions fall for our consideration in these appeals.

(i)Whether the High Court in exercise of its power under Article 235 of the Constitution of India can control the method, manner and mode of recruitment of candidates to Class III and Class IV services in the District Courts and the Courts subordinate thereto, despite the fact Page 19 of 62 81 of 124 C/SCA/29765/2007 JUDGMENT that the power to make rules as to the recruitment and conditions of service of the employees of the subordinate courts vests in the State Government, in the absence of which the Governor may frame rules under Article 309 and in absence of both, administrative or executive instructions can be issued under Article 162 of the Constitution of India?"

7. After formulating the questions for consideration, it was observed at paragraphs 13 to 19 as under:

13. Before adverting to the questions framed aforementioned, we should look into the Rules for recruitment of candidates for Class III and IV services in the District as contained in the Government of Bombay, Home Department Resolution dated 26th December, 1957. We reproduce the same as under: ADVISORY COMMITTEE FORMATION OF ADVISORY COMMITTEES FOR RECRUITMENT TO CLASS III AND CLASS IV SERVICES.

GOVERNMENT OF BOMBAY HOME DEPARTMENT RESOLUTION NO. MIS. 1055/62546III, SACHIVALAYA, BOMBAY, DATED 26th DECEMBER, 1957 Government Resolution, Political and Services Department No. GDR1955X, dated the 2nd May, 1955. Government letter, Home Department No. MIS1055/62546B, dated the 1st February, 1956 Letter No. B.5602/53, dated the 19th September, 1957 from the Registrar, Page 24 of 68 High Court (Appellate Side) Bombay.

R E S O L U T I O N:

Page 20 of 62

82 of 124 C/SCA/29765/2007 JUDGMENT Government has decided that Advisory Committee should be formed in every District to assist the District Judges in making appointments to Class III and Class IV Services in the Judicial Department. The Advisory Committee for each District should compose of the District Judge, the Assistant Judge and the Civil Judge, Senior Division.

In a District where there is no Assistant Judge, the Advisory Committee should compose of the District Judge and the Civil Judge, Senior Division.

2. The rules for recruitment of candidates to Class III and IV Services in the District are contained in the Appendix attached.

BY ORDER & IN THE NAME OF THE GOVERNOR OF BOMBAY.

Sd. V.N. Kalghatgi Assistant Secretary to the Government of Bombay, Home Department.

RECRUITMENT RULES FOR RECRUITMENT TO CLASS III AND IV SERVICES IN THE SUBORDINATE JUDICIAL SERVICES

2. The list shall contain names of candidates for recruitment to Class III and Class IV posts separately namely for (a) Clerks,

(b) Section Writes, (C ) Stenographers,

(d) Bailiffs and (e) Peons. Each part of the list shall be a separate one.

3. In preparing the list the District Judge shall act upon the advice of a Committee known as the Advisory Committee for recruitment to Subordinate Judicial Page 21 of 62 83 of 124 C/SCA/29765/2007 JUDGMENT Service in the District.

(b) the expected permanent vacancies for the next year and an addition of 20 % of

(a) and (b)for wastage.

7. Any list prepared by the Advisory Committee shall continue to remain in force till the list is exhausted.

8. If the number of candidates required under Rule 6 is small, the Advisory Committee may, in its discretion, not add to the previous list in any year.

9. Every year when the Advisory Committee meets to prepare a list, it shall also Page 22 of 62 84 of 124 C/SCA/29765/2007 JUDGMENT scrutinize the previous list in order to strike off persons ineligible for appointment from the said list.

15. It appears that after bifurcation of Gujarat from the then State of Bombay on 1st May, 1960, the Government of Gujarat, in its General Administration Department, issued a Circular, which reads as under: Page 23 of 62 85 of 124 C/SCA/29765/2007 JUDGMENT No. GSF1060 GOVERNMENT OF GUJARAT.

GENERAL ADMINISTRATION DEPARTMENT:

Ahmed abad, dated 1st May 1960.

CIRCULAR With a view to avoiding any administrative difficulty, Government is pleased to direct that all rules and regulations, procedure, circulars, instructions, all schemes and sanctions prevailing in the former Bombay State will continue to operate in the new State of Gujarat until changed for modified by the Government. By order and in the name of the Governor of Gujarat. V. ISVARAN, Chief Secretary to the Government of Gujarat General Administration Department.

16. The power to make Rules as to the recruitment and conditions of service of the employees of the subordinate courts vests in the State Government, in the absence of which the Governor may frame Rules under Article 309, and in the absence of both, administrative or executive instructions can be issued under Article 162 of the Constitution of India.

Article 309 of the Constitution of India provides that subject to the provisions of the Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. By virtue of the proviso, it is competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make Rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made, by Page 24 of 62 86 of 124 C/SCA/29765/2007 JUDGMENT or under an Act of the appropriate legislature under this Article and any Rules so made shall have the effect subject to the provisions of such Act. In other words, by the proviso, in the absence of the competent legislature making legislation, it is open to the Governor in the case of a State to make Rules, which will have force of law till such time law is enacted by the competent legislature.

17. In the instant case, we have found that there are no statutory rules framed under Article 309 of the Constitution of India. With that, we proceed to consider Article 162 of the Constitution of India. Article 162 sets out that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. In other words, the executive power is coextensive with the legislative power and can be exercised if the legislative power has not been exercised. In service laws, as is now settled, even if the rules have been made under Article 309 of the Constitution of India, it is still open to issue instructions pursuant to Article 162, in those matters where rules are silent or not made. There is yet another Article which may be noted, namely, Article 166. That Article provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Article 166(2) then sets out that the orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified by rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Subrule (3) sets out that the Governor shall make rules for the more convenient transaction of the business of Page 25 of 62 87 of 124 C/SCA/29765/2007 JUDGMENT the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

19. It appears from the materials on record that the High Court on its administrative side constituted a Committee for framing Guidelines for centralized recruitment of persons to Class III and Class IV posts in various subordinate courts in the Districts, in view of the fact that the recruitment process undertaken at various Districts consumed a lot of judicial time and energy. The High Court took a policy decision in that regard and decided that recruitment to Class III and Class IV services should be centralized and should be conducted under the supervision of the High Court. It was also decided that common applications should be invited from different districts and the candidates should be asked to give preferences of the district. This would ensure that the candidates may not have to apply in different districts and the multiplicity of applications would get eliminated. It was also decided that the written examination would be objective in nature with a multiple choice question with or without negative marks. This would eliminate subjective assessment of the answers and would save time and energy in Page 26 of 62 88 of 124 C/SCA/29765/2007 JUDGMENT assessing question papers. It also appears that the Committee suggested that instead of amending the existing rules in the form of executive instructions, and getting them notified by the Government, the same could be brought in force by way of a High Court Notification or High Court's administrative direction/order." (Emphasis supplied)

3. The policy decision of the High Court to have a Centralized Recruitment Cell for the purpose of undertaking the centralized selection process for recruitment of candidates to Class III and IV services in Page 27 of 62 89 of 124 C/SCA/29765/2007 JUDGMENT the respective District Courts Page 65 of 68 could not be said to be in any manner illegal or in violation of the executive instructions as contained in the Government of Bombay, Home Department Resolution dated 26 th December, 1957 ;

4. The High Court was not obliged in law, before formulating a policy to have a centralized recruitment process, to recommend the Government for making necessary amendments in the administrative instructions as contained in the Resolution of 1957, as the High Court should not be asked to run to the Government in all such matters as the Rules, if any, framed with regard to the members of such establishments, either administratively or under Article 309 of the Constitution, must be so read as to make them consistent with the administrative superintendence or control jurisdiction of the High Court under the Constitution;



                           Page 28 of 62



                                                                90 of 124
  C/SCA/29765/2007                              JUDGMENT

15. The aforesaid observations made in the above referred two decisions of this Court would negate the contention raised by the learned Counsel for the petitioners that the decision of Page 29 of 62 91 of 124 C/SCA/29765/2007 JUDGMENT the High Court on administrative side for age relaxation would run counter to the socalled Rules, which are, in fact, not the Rules framed by the Governor in exercise of the power under Article 309 of the Constitution of India, but rather only by way of executive instructions.





                        Page 30 of 62



                                                          92 of 124
  C/SCA/29765/2007                            JUDGMENT

17. The aforesaid shows that if any candidate, who is otherwise qualified and joins duty during leave vacancy, which can be considered at par with temporary or ad hoc within the age limit and he continues and becomes agebarred, his case can be considered for age relaxation. Apart from the above, in the present recruitment process for the candidates belonging to a specified class or category namely; SC, ST and SEBC and Physically Handicapped and Exarmymen, the relaxation has been considered by the District Courts up to five years as per the policy prevailing of the State Government for its employees. As per the records submitted during the course of hearing by Mr.Supehia, learned Counsel appearing for the Registrar of High Court, the District Court had considered the age relaxation of the aforesaid category of persons up to five years and the list was so submitted before the High Court on administrative side for approval and it was so approved. Under these circumstances, it can be said that the District Courts, the first authority and the High Court on administrative being the supervisory authority, both have taken decision for age relaxation of the aforesaid specified category in the same manner as the State Government has extended the benefits to the same category for its employees. If the decision is taken by the District Courts or the High Court on administrative side adopting the similar policy for age relaxation for the similar Page 31 of 62 93 of 124 C/SCA/29765/2007 JUDGMENT category of candidates being State Government employees, such cannot be said to be arbitrary or unreasonable and the reason being that the State Government for its employees has extended the benefits and such is reflected by the statutory Rules framed by the Government. If any authority on administrative side is guided by the statutory Rules framed in respect of other employees, who are more or less similarly situated, the decision cannot be said to be per se arbitrary, unless any satisfactory material is produced that the power was so exercised to show a special favour for a particular category of candidates with extraneous consideration. Such is not the factsituation, nor there is any allegation made by the petitioner in the event that the decision of the competent authority to grant age relaxation at par with the decision in respect of the State Government employees was arbitrary or otherwise. Hence, it can be said that the decision of the District Court and the approval thereto by the High Court for grant of age relaxation to the candidates of aforesaid reserved categories up to five years would not be arbitrary, since such policy decision is taken in line of the other Government servant, who are under the control of the State Government.

18. The next aspect, which may be required to be examined is whether the further age relaxation considered, i.e., exceeding five years in respect Page 32 of 62 94 of 124 C/SCA/29765/2007 JUDGMENT of four candidates, who were working in the establishment of the District Courts or in the establishment of the Gujarat State Legal Services Authority, can be said to be arbitrary or not. As per the record submitted by the learned Counsel Mr.Supehia in the list, in all, there were 11 candidates, in respect of whom the age relaxation was suggested by the District Court, out of which, in respect of one candidate at Sr. No.70 - Thakkar Rupalben Shankerbhai, her name was deleted, as she was overaged. Therefore, in effect, there were in all 10 candidates, for whom age relaxation was considered and recommended by the District Court to the High Court for approval. Out of those 10 candidates, one Mr.T.D. Jain did not join the duty and, therefore, the question may be required to be considered for only 9 candidates for whom age relaxation was recommended and ultimately approved by the High Court. The detail of those 9 candidates as per the record submitted by Mr.Supehia on behalf of the learned District Judge is as under: Sr Name of Date of birth Date of Date of Remarks Assistant joining at joining the GSLSA, District Ahmedabad Court, Dahod as (ad hoc) assistant Page 33 of 62 95 of 124 C/SCA/29765/2007 JUDGMENT 1 Mr.R.B.Patel 11.10.1977 07.04.1999 11.08.2004 At present, deputed at Labour Court, Dahod as Gujarati Stenographer Gr.II 2 Ms.G.T.Gajjar 17.04.1972 25.12.2001 11.08.2004 She is transferred as Inter District at Metropolitan Magistrate Court, Ahmedabad 3 Mr.M.J.Saiyed 29.04.1974 07.07.1999 11.08.2004 4 Mr.V.P. Jha 06.05.1978 07.04.1999 11.08.2004 5 Mr.M.M.Shaikh 16.09.1978 07.05.1999 11.08.2004 6 Mr.R.L.Desai 29.10.1974 14.07.1999 11.08.2004 He expired on 28.2.2013 7 Ms.A.B.Trived 19.11.1972 10.01.2002 11.08.2004 i 8 Mr.R.M.Pirzad 17.07.1974 30.10.2001 11.08.2004 a 9 Mr.N.D.Dabhi 27.05.1976 16.09.1999 11.08.2004

19. The aforesaid detail shows that the age relaxation was considered and recommended in respect of aforesaid 9 persons, since they were in service with the Gujarat State Legal Services Authority since 1999 or 2001 or 2002 as the case may be. On 30th September, 2004, the Standing Committee of the High Court on administrative side had taken following decision: "Resolved that requests made by regular employees of District Courts, Bharuch, Valsad, Rajkot, Surat, Surendranagar and Sabarkantha, who have opted for respective posts on the establishment of newly created District Court, Dahod, be considered, where District Judge has given consent, on condition that they shall be placed below the employees of Panch Mahals, transferred and posted in newly created Dahod Judicial District, in the respective cadre; temporary Page 34 of 62 96 of 124 C/SCA/29765/2007 JUDGMENT and daily wage employees, who have given willingness, be considered taking into account the duration of service rendered by them, for adhoc and temporary employment and also considered with others at the time of regular recruitment giving them age relaxation."

21. The aforesaid two communications show that the policy decision was taken by the High Court for grant of age relaxation for employees working on temporary basis in the set up of Dahod District Court and certain employees working with the Gujarat State Legal Services Authority, who Page 35 of 62 97 of 124 C/SCA/29765/2007 JUDGMENT were subsequently given appointment on temporary and ad hoc basis in Dahod District were also to be considered for grant of age relaxation. It has been contended on behalf of the High Court administration that it is on account of the aforesaid policy decision of the High Court, age relaxation was recommended by the District Court in respect of the aforesaid 9 persons and it has been so approved by the High Court on administrative side. It is not in dispute that those employees at the time of recruitment process were not working with the set up of the District Court, Dahod, but the contention of the learned Counsel for the petitioners is that they were initially not appointed as temporary employees in the set up of Dahod District Court, but they have entered service on ad hoc basis with Gujarat State Legal Services Authority, which is different than the set up of District Court, Dahod. It was, therefore, submitted that the benefits of age relaxation could not be given to these 9 employees. In our view, the contention is on a wrong premise, inasmuch as the case of those 9 persons are to be considered as was prevailing on the date of advertisement. When on the date of advertisement, they were already working as temporary and ad hoc in the set up of Dahod District Court and when Standing Committee of High Court had taken decision for grant of age relaxation to the employees working as temporary and ad hoc in Dahod District Court Page 36 of 62 98 of 124 C/SCA/29765/2007 JUDGMENT at the time of regular recruitment, such persons can be said as similarly situated with the other persons, who were given appointment in the District Court for the first time when Dahod District was formed or who were subsequently given appointment as temporary and ad hoc in the set up of Dahod District Court. When similar treatment has been given to the persons similarly situated, it cannot be said that any discriminatory treatment is given in the matter for grant of age relaxation.

22. Attempt to contend that the High Court would not, on administrative side, grant age relaxation in an arbitrary manner, cannot be countenanced for two reasons; one is that the decision of the High Court to grant age relaxation or the decision of the District Court to recommend for age relaxation and ultimate approval for age relaxation by the High Court is essentially a policy matter to be decided by the competent authority or the highest authority, which is High Court, in the present case, on administrative side. The decision of the High Court on administrative side to grant age relaxation is not under challenge in the petition on the ground that the High Court has no power to grant age relaxation or that the action of the High Court for grant of age relaxation is without any authority under the law. No prayers are made to that effect. Even if it is considered for the Page 37 of 62 99 of 124 C/SCA/29765/2007 JUDGMENT sake of examination that the petitioner could raise such a contention while assailing the action for preparation of the select list, then also as observed by us herein above, under Article 235 of the Constitution the power vests to the High Court to decide the method, mode and the manner of recruitment process, which would include the fixation of eligibility criteria, including the qualification, upper age limit, or the power for making relaxation therein. The second reason is that the High Court while exercising the administrative power for grant of age relaxation has not given any discriminatory treatment, but similar age relaxation has been granted in respect of all the persons similarly situated. It is true that the petitioner is not falling in that category, but even if such action is tested with constitutional mandate of Article 14, when similar treatment is given to all similarly situated persons, no vice can be found therein. Hence, the contention fails.

24. The aforesaid would lead us to examine the aspect of challenge to the select list on the Page 38 of 62 100 of 124 C/SCA/29765/2007 JUDGMENT ground of favouritism and nepotism. The petitioner has made allegation that in all there were 32 candidates, who were relatives of various persons working in the set up of District Court, Dahod or subordinate thereto. In the said list, the petitioner has alleged that certain candidates were relatives of other Court staff and judicial officers working in the other Districts of Gujarat State. The allegation of the petitioner is that on account of their relatives working in the same district or another district of Gujarat State as Court staff or judicial officer, they have been favoured for inclusion in the select list and, therefore, the inclusion of their names in the select list is illegal. The aforesaid list can be bifurcated into three categories of persons; one for whom the allegation is that the relatives were working in the other Court of other District, including certain staff of the High Court; second category is of the persons, whose relatives were working in the set up of the District Court at Dahod and the third category is that the persons, who were relatives of the District Judge himself. We will examine the cases categorywise, but before we proceed to examine the said aspect, we may consider the averments made in the petition and also the process undertaken for preparation of the select list and the persons, who played role in the same. The petitioner in the petition at paragraph 12 has alleged as under: Page 39 of 62 101 of 124 C/SCA/29765/2007 JUDGMENT "12. The petitioner further states and submits that the selection list also suffers from the vice of nepotism and favourism, as some of the candidates are the nearest relatives of the Judges discharging their duties in Dahod District Court. The petitioner states and submits that some of the persons who have found place in the selection list were declared as failed in the written examination, though interview call letters issued and ultimately their names form part of the select list."

25. As per the petitioner, in furtherance to the aforesaid statement made in the petition, the above referred list at AnnexureJ on page 32D has been submitted. The important aspect is that the petitioner has not joined any of the so called relatives of any candidate as party respondent, except the Principal District Judge in his official capacity and not in his individual capacity. If the matter is considered as it is, in absence of those persons, who are alleged to have influenced the selection process, this Court would not be in a position to conclude as to whether those persons had influenced the selection process or not. It is by now well settled that if the allegation of mala fide is made against any person, may be in individual capacity or may be in official capacity, such persons by name in the respective capacity is required to be joined as party. Further, no details about the manner in which the influence has played the role in the selection process is Page 40 of 62 102 of 124 C/SCA/29765/2007 JUDGMENT averred by any of the petitioners. No proof is produced to show that the socalled candidate was or is in relation with the other person. Hence, it can be said that the allegation of mala fide as such cannot be accepted in absence of the necessary party and the allegations can also not be accepted, since they are vague and without there being any proper material for supporting the allegations.

26. We may now further examine the allegation categorywise. No material is produced in the record of this Court as to how the socalled relatives of certain candidates working outside Dahod District have played any role to influence the recruitment process and competent authority undertaking the recruitment process. For the second category of the persons also no details are mentioned that those persons, who are said to be the relatives of the candidates have played any role in the recruitment process. At this stage, we may record that as per the advertisement for the post of Junior Clerk, there were written tests and thereafter typewriting tests and thereafter shorthand test for Stenographer or oral interview to be undergone by concerned candidates for different posts. In any case, written test and oral interview were the process of selection. It is for the petitioner to demonstrate before the Court by satisfactory material that the written test was conducted by a Page 41 of 62 103 of 124 C/SCA/29765/2007 JUDGMENT particular person and his relative had appeared in that written test and he had played any role, since such person was working in the District Court set up of Dahod. Neither any specific allegation is there, nor any material is produced before the Court. However, this Court did inquire from Mr.Supehia appearing for the High Court on administrative side as well as for the learned District Judge, Dahod and he has stated before the Court that none of the persons, who are stated to be relatives working in the District Court, Dahod had played any role in the written examination or oral interview at the time of selection of the candidates. Therefore, in our view, the challenge made for the first and second categories of the candidates cannot be sustained.

27. The cases of the matter for third category of the candidates, who were alleged to be relatives of the then District Judge at the time of selection deserves consideration. It is true that the District Judge by name is not impleaded as party, but he has been joined in official capacity as District Judge, Dahod. The allegation in the petition read with the details as mentioned at AnnexureJ is that three candidates were in relation with the then District Judge at the time of selection namely; (1) Mr.Parmar Bharatbhai Bhailalbhai, who is alleged to be son of real brother of District Page 42 of 62 104 of 124 C/SCA/29765/2007 JUDGMENT Judge, Shri R. M. Parmar; (2) Mr.Parmar Mehulsinh Maganbhai, who is alleged to be the son of the sister of father of Shri R. M. Parmar; (3) Ms.Parmar Khusbu Harivadanbhai, who is alleged to be the daughter of the sister of the wife of Shri R.M. Parmar. All the three candidates are joined as party respondents. It was submitted by Mr.Supehia, learned Counsel appearing for the Registrar of the High Court and the District Judge that the interview committee comprised of District Judge Shri R. M. Parmar, Shri J.K. Gandhi, Additional District Judge and Shri R.M. Desai, Principal Sr. Civil Judge. Since there is no allegation by name of the other members of the selection committee, but the allegation remained for the District Judge Shri R. M. Parmar and as all the aforesaid three candidates were joined as party respondents in the present proceedings, upon further inquiry by the Court, Mr.J.F. Mehta, learned Counsel appearing for Mr. Parmar Bharat Bhailalbhai, stated under the instructions of his client, and rather admitted that his client Parmar Bharat Bhailalbhai is son of the brother of Shri R.M. Parmar, the then District Judge. The another candidate Parmar Mehul Maganbhai, who is also stated to be relative of Shri R.M. Parmar has filed affidavit, declaring that he, directly or indirectly, is not in any relation with Shri R.M. Parmar. There is no evidence to the contrary. Hence, the allegation made by the petitioner cannot be accepted qua Parmar Mehul Page 43 of 62 105 of 124 C/SCA/29765/2007 JUDGMENT Maganbhai. The third candidate Ms.Parmar Khusbu Harivadanbhai is represented through Mr.T. R. Mishra. Mr.Mishra, under the instructions of Ms.Parmar Khusbu Harivadanbhai, who is stated to be present in the Court, did admit that she is the daughter of the sister of the wife of Shri R.M. Parmar, but he further stated that as she had married outside her caste with one Shri Gohil, she was boycotted, inasmuch as nobody in the family of her father or mother had maintained any relation and, therefore, she did not state the relation with any Court staff in the application. So far as Mr.Parmar Bharatbhai Bhailalbhai is concerned, he has also not mentioned the relation with Shri R.M. Parmar.

28. The aforesaid shows that the above referred two candidates; respondent Nos.19 and 24 were in close relation with the then District Judge, who was one of the Members of the Interview Committee. However, Mr.Supehia, learned Counsel for the Registrar of the High Court declared that the then District Judge has not played any role in the written test or the typing test of the aforesaid two persons, but he fairly submitted that the role was played as the Member of the Interview Committee by the said District Judge. Mr.Supehia attempted to contend that too poor marking in the interview or average marking in the interview to the extent of 50% was given by the then District Judge, who played role in the Page 44 of 62 106 of 124 C/SCA/29765/2007 JUDGMENT selection committee and, therefore, in his submission even if the marking given by the other two Members of the interview Committee were only considered and averaged out for the selection, such may not make material difference, since both the aforesaid candidates were much above in the merit list based on their performance in the written test as well as marking given by the other two members of the selection committee. However, Mr.Supehia candidly admitted that the question of deemed bias would arise, since the then District Judge was in close relation with the candidates, who were interviewed by him and he was one of the Members of the Committee.

29. Considering the fact that respondents no.19 and 24 were in close relation with the then District Judge, who was member in the interview committee and considering the above referred fact situation, we find that as there is no material whatsoever for any role played by the then District Judge in the written test or typing test of the candidates concerned, the merit so assessed of respondents no. 19 and 24 at the written test or typing test cannot be said to be with any bias or malafide. We are inclined to make such observations because the declaration as referred to hereinabove made by the Registrar of the High Court that the learned District Judge has not played any role directly in conducting of the written examination and typing test since the Page 45 of 62 107 of 124 C/SCA/29765/2007 JUDGMENT merit at that level was to be assessed by the persons other than the learned District Judge. Further no other material is produced on behalf of the petitioner showing otherwise. Therefore, taking into consideration the aforesaid peculiar circumstances, we find that the allegation for malafide or favouritism at the written test examination or typing test examination even for respondents no.19 and 24 cannot be accepted.

31. As observed by us hereinabove, in absence Page 46 of 62 108 of 124 C/SCA/29765/2007 JUDGMENT of any material satisfactorily demonstrated before this Court about the role played in the written test or typing test, it may not be possible for us to read the principles of deemed bias to that extent. However, in the interview committee, when the then District Judge was member and rather Chairman of the interview committee, principles of deemed bias would apply and it can be said that the merit secured by those two candidates at the interview would get vitiated and no sanctity can be attached to such marking of the interview committee which includes the marking given by the then District Judge, who was close relative of the candidate concerned. At this stage, we may make useful reference to the decision of the Apex Court in the case of HC Puttaswamy and others vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others reported in AIR 1991 SC 295, wherein the question that arose for consideration before the Apex Court was about certain appointments made by the then Chief Justice of the High Court of certain candidates in excess of the post advertised and also with the allegation that such appointments were contrary to the statutory rule. The Apex Court at paras 10 and 11, observed thus "10. While the administration of the Courts has perhaps never been without its. critics, the method of recruitment followed by the Chief Justice appears to be without parallel. The learned Judges of the High Page 47 of 62 109 of 124 C/SCA/29765/2007 JUDGMENT Courts have in a considered judgment allowed the writ petitions and quashed all those appointments. They have expressed the view that the appointments made by the Chief Justice were very serious violation of statutory law and constitutional protection of equality of opportunity guaranteed to the candidates under Articles 14 and 16(1).From the foregoing narration of events and by the rules of recruitment, it seems to us that there cannot be two opinions on the conclusion reached by learned Judges. The methodology adopted by the Chief Justice was manifestly wrong and it, was doubtless deviation from the course of law which the High Court has to protect and preserve.

11. The Judiciary is the custodian of constitutional principles which are essential to the maintenance of rule of law. It is the vehicle for the protection of a set of values which are integral part of our social and political philosophy. Judges are the most visible actors in the administration of justice. Their case decisions are the most publicly visible outcome. But the administration of justice is just not deciding disputed cases. It involves great deal more than that. Any realistic analysis of the administration of justice in the Courts must also take account of the totality of the Judges behaviour and their administrative roles. They may appear to be only minor aspects of the administration of justice, but collectively they are not trivial. They constitute, in our opinion, a substantial part of the mosaic which represents the ordinary man's perception of what the Courts are and how the judges go about their work. The Chief Justice is the prime force in the High Court.Article 229 of the Constitution provides that appointment of officers and servants of the High Court shall be made by the Chief Justice or such other Judge or officer of the Court as may be directed by Page 48 of 62 110 of 124 C/SCA/29765/2007 JUDGMENT the Chief Justice. The object of this Article was to secure the independence of the High Court which cannot be regarded as fully secured unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. There can be no disagreement on this matter. There is imperative need for total and absolute administrative independence of the High Court. But the Chief Justice or any other Administrative Judge is not an absolute ruler. Nor he is a free wheeler. He must operate in the clean world of law, not in the neighbourhood of sordid atmosphere. He has a duty to ensure that in carrying out the administrative functions, he is actuated by same principles and values as those of the Court he is serving. He cannot depart from and indeed must remain committed to the constitutional ethoes and traditions of his calling.We need hardly say that those who are expected to oversee the conduct of others must necessarily maintain a higher standard of ethical and intellectual rectitude. The public expectations do not seem to be less exacting."

32. The aforesaid shows that as observed by the Apex Court, the judiciary while acting on administrative side, has a duty to ensure that in the functioning carried out by it, the principles and values as those of the Court are required to be maintained. Judiciary cannot depart from and indeed must remain committed to the constitutional ethos and traditions of his calling. The conduct of the judiciary even on administrative side must necessarily be to maintain the higher standard of ethical and intellectual rectitude. Hence, we cannot Page 49 of 62 111 of 124 C/SCA/29765/2007 JUDGMENT countenance the participation by judicial officer in a selection process where his or her close relative is to appear or the merit of his or her close relative is to be assessed. We may record that the principles of deemed bias has an exception of doctrine of necessity. But neither such doctrine is pleaded nor any material is demonstrated before the Court for such purpose. Under the circumstances, we find that the merit secured by respondents no.19 and 24 at the interview would not meet with the test of Articles 14 and 16 in a matter of public employment. Consequently, the merit secured by both the aforesaid candidates would be required to be quashed and set aside.

33. Mr.Supehia, learned counsel appearing for the Registrar of the High Court and the District Court contended that those candidates were much above in the merit list based on the written test and by now, they have undergone the services of about 9 years and therefore, they have become age barred if they have to apply for the fresh recruitment. He submitted that as was considered by the Apex Court in the case of HC Puttaswamy (supra) on humanitarian consideration, Court may allow their appointment to continue instead of fresh selection even in the interview. He pressed in service the observations made by the Apex Court in the above referred decision in the case of HC Puttaswamy (supra) at paragraph 16 for applying the rule of mercy. Such prayer was also Page 50 of 62 112 of 124 C/SCA/29765/2007 JUDGMENT made by Mr.Mehta as well as Mr.Mishra appearing for the respondents no.19 and 24 respectively.


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36. As observed by us hereinabove, it is not a matter found by us that the High Court while granting age relaxation has acted in contravention to any statutory rule. Therefore, as such, the said decision in the case of Renu and others (supra) will be of no help to the petitioner. The contention raised for setting aside of the entire select list also cannot be accepted for the simple reason that the other candidates in respect of whom no illegality is found, cannot be made to suffer merely because in respect of respondents no.19 and 24, this Court found that in the interview level the principles of deemed bias would apply and the selection would be vitiated. Hence, we cannot countenance Page 52 of 62 114 of 124 C/SCA/29765/2007 JUDGMENT the submission that the entire select list deserves to be set aside. The only aspect now will be required to be considered is the effect upon the selection of respondents no.19 and 24 which includes merit secured at the written test as well as the merit secured at the interview.

"4.We have heard counsel for the parties and are of the view that when no defect was pointed out in regard to the written examination and the sole objection was confined to exclusion of a group of successful candidates in the written examination from the interview, there was no justification for cancelling the written part of the recruitment examination. On the other hand, the situation could have been appropriately met by setting aside the recruitment and asking for a fresh interview of all eligible candidates on the basis of the written examination and selecting those who on the basis of the written and the freshlyheld interview became eligible for selection."

38. The above observations show that when no defect was pointed out in regard to the written examination and the objection is found confined to the interview, there would not be any justification for cancelling the written part of the examination. It has been further observed that the situation could have been appropriately Page 53 of 62 115 of 124 C/SCA/29765/2007 JUDGMENT met by setting aside the recruitment and asking for fresh interview of the eligible candidates on the basis of the written test.

40. The aforesaid shows that the Apex Court when had found that if the whole selection is scrapped, most of the candidates would be Page 54 of 62 116 of 124 C/SCA/29765/2007 JUDGMENT ineligible at least in respect of age as the advertisement was issued more than 6 years ago. We may record that in the present case, it is about more than 9 years ago. Further, in the said case, the Apex Court did not interfere with the direction of the High Court to continue the select list from the point at which it stood vitiated.


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Further, at the written test, the merit of respondent no.19 was 74% whereas, of respondent no.24 was 70%. As observed by us hereinabove, the merit secured by both the candidates at the written test is not interfered with. However, the further merit secured by the said candidate at the oral interview shows that respondent no.19 secured 38 average marks whereas respondent no.24 secured 54 average marks out of 75 marks. In our view, if the merit secured at the oral interview is set aside, the consequence would arise that the merit of respondents no.19 and 24 at the interview may be required to be undertaken by the committee in which any of the close relative of both the candidates is not there as member. What shall be the formation of the committee for the purpose of interview need not be finalised by us but considering the facts and circumstances, we find that it would be just and proper to leave it to the Registrar of the High Court to decide on administrative side since it has been stated that Mr.R.M. Parmar, the then District Judge has retired from service. The said committee so formed by the Registrar of the High Court may reassess the merit of respondents no.19 and 24 and thereafter, their merit will have to be adjusted after considering the marks secured by both the candidates at the written test. If ultimately, it is found that the average marks obtained by respondents no. 19 and 24 are below the marks obtained by the last candidate Ms. Page 56 of 62 118 of 124 C/SCA/29765/2007 JUDGMENT Dabhi Rajeshri Dhirajlal of 130, the services of respondents no.19 and 24 will be required to be terminated. In the event it is found that respondents no. 19 and 24 after considering the marking at the fresh interview have secured average marks exceeding 130, their appointment may be retained but with readjustment of the merit order in the select list. Consequently, it may also affect their seniority in the list.

43. It is true that in the observations made by us hereinabove, the learned District Judge has not recused himself from the interview process, Page 57 of 62 119 of 124 C/SCA/29765/2007 JUDGMENT but at the same time, as observed by us hereinabove, he has not been joined as party respondent in his individual capacity. The affidavit has been filed by the Registrar of the District Court and not by Shri R.M.Parmar, as the then District Judge. Therefore, we refrain from making any further comment on the said aspect except observing that the learned Judge should have been more careful to keep himself away from the process where his close relatives were associated. We leave at that since it has been stated that the said District Judge has already retired.

44. In view of the aforesaid observations and discussions, it is ordered and directed that the merit secured by respondents no.19 and 24 at the interview for the post of Junior Clerk in the set up of District Court, Dahod pursuant to the advertisement dated 21.06.2005 is set aside with the further direction that merit of respondents no.19 and 24 shall be reassessed by the advisory committee as per the executive instructions of 1957 referred to hereinabove from the stage of oral interview. The said advisory committee shall be formed by the Registrar of the High Court, wherein none of the close relatives or relatives of respondents no.19 and 24 shall remain as the member of the interview committee. It is further observed and directed that such committee shall undertake the process of assessment of merit of respondents no.19 and 24 Page 58 of 62 120 of 124 C/SCA/29765/2007 JUDGMENT at the interview afresh and the marking shall be given. After the marks secured by respondents no.19 and 24 at the aforesaid interview, the competent authority shall decide as to whether both the candidates or any of the candidates have/ has secured higher marks or equivalent marks in comparison to the merit of the last candidate at Sl.No.80. If respondents no.19 and/or 24 secure merit less than the merit of the last candidate at Sl.No.80, their appointment shall stand terminated. It is further observed and directed that in the event respondents no.19 and/or respondent no.24 secure merit above or equal to the merit of the last candidate at Sl.No.80, their appointment shall be continued, but subject to the readjustment of their names in the merit order and their appointment shall stand as regular appointment for the prospective period but with the rider that respondents no.19 and 24 shall not be in a position to march over the merit of other candidates. As regards the period from the actual appointment in the year 2005 till the aforesaid process is completed, the matter shall be considered on administrative side by the competent authority for regularisation of the period, but with the further clarification that even if such period is regularised, their seniority will stand as per their merit order in the select list prepared after undertaking the above referred fresh interview and not as per their merit order in the earlier select list.




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46. Special Civil Application No.29765/07 shall stand partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.

47. In Special Civil Applications No.29861/07 and 29862/07, there are too vague and too general allegations on the ground of favouritism and napotism for the post of Peon for which no details are mentioned nor the persons who have played role are impleaded as parties and therefore, we do not find that any case is made out for interference in the select list prepared for the post of Peon. The contentions raised by petitioners of Special Civil Application No.29861/07 that his name was shown in the earlier list and subsequently, deleted in the second list appears to have been made on account of the mistake detected by the competent authority since the said petitioner was age barred. It is not the case of the said Page 60 of 62 122 of 124 C/SCA/29765/2007 JUDGMENT petitioner that he was similarly situated with the other employees working on temporary basis in the set up of District Court, Dahod. Further, the District Court has not recommended for age relaxation for any of the candidates whose names were included in the select list for the post of Peon on the ground that they were working in the set up of District Court, Dahod nor any such age relaxation was considered by the High Court on administrative side when the approval to the select list was granted. So far as petitioners of Special Civil Application No.29862/07 is concerned, his name was not there even in the first list. Therefore, such contention would not survive for him.



                                       (JAYANT PATEL, J.) 



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                                          (Z.K.SAIYED, J.) 
bjoy




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Nirkitaben Mohitkumar Soni Thro'Poa ... vs Registrar Honourable High Court Of ... on 15 July, 2014