Gujarat High Court
Archana Balkrishna Trivedi vs State Of Gujarat on 20 April, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/5888/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5888 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ARCHANA BALKRISHNA TRIVEDI....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR GM AMIN, ADVOCATE for the Petitioner
MR DM DEVNANI, ASSISTANT GOVERNMENT PLEADER for Respondent No.1
MRS KIRAN PREMAL JOSHI, ADVOCATE FOR MR PREMAL R JOSHI, ADVOCATE for
Respondent No.2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 20/04/2015
ORAL JUDGMENT
1. Leave to amend the causetitle of the petition Page 1 of 23 C/SCA/5888/2015 JUDGMENT so as to implead the State of Gujarat through the concerned Secretary, is granted. The necessary amendment in the causetitle be carried out forthwith.
2. Rule. Mr.D.M.Devnani, learned Assistant Government Pleader, waives service of notice of Rule for respondent No.1 and Mrs.Kiran P.Joshi, learned advocate for Mr.Premal R.Joshi, learned advocate, waives service of notice of Rule for respondent No.2. Considering the issue involved in the petition and the urgency expressed on behalf of the petitioner, the petition is being heard and decided finally, with the consent of the learned counsel for the respective parties.
3. By preferring this petition under Article 226 of the Constitution of India, the petitioner has made the following prayers:
(A) This Hon'ble Court may be
pleased to admit this petition;
(B) This Hon'ble Court may be
pleased to issue appropriate Writ, order or direction calling upon the Page 2 of 23 C/SCA/5888/2015 JUDGMENT respondent to call the petitioner for interview for the post of Assistant Charity Commissioner as and when the interview process begins;
(C) This Hon'ble Court may be pleased to issue other appropriate Writ, order or direction by holding that the petitioner fulfills all the criteria for the post of Assistant Charity Commissioner and be pleased to quash and set aside the impugned list to the extent that the petitioner is not fulfilling other condition of advertisement; and (D) This Hon'ble Court may be pleased to grant any such and further orders as may be deemed just and proper.
4. The brief facts of the case, as culled out from the petition and material on record, are that the petitioner is, at present, serving as an Assistant in the District Court, Dahod, which post she is holding since 2004. Pursuant to an advertisement dated 26.11.2013, issued by respondent No.2 Gujarat Public Service Commission ("GPSC"), the petitioner applied for Page 3 of 23 C/SCA/5888/2015 JUDGMENT the post of Assistant Charity Commissioner (ClassI). According to the petitioner, she fulfils all the eligibility criteria for the post. The petitioner was permitted to appear in the Primary Test conducted by the GPSC on 23.03.2014, for shortlisting the candidates to be called for the personal interview for the post in question, after scrutiny of all documents. The petitioner appeared in the Primary Test but, as per the impugned communication dated 11.09.2014, she was not called for a personal interview on the ground that, though she fulfils the requirement of the criteria laid down by the GPSC, she does not fulfil the conditions of the advertisement. This is stated in the impugned communication against the roll number of the petitioner, which is No.101000625. It is the case of the petitioner that she fulfils the eligibility criteria for the post of Assistant Charity Commissioner (ClassI), as stated in the advertisement and laid down in the Recruitment Rules, therefore, she ought to have been called for the personal Page 4 of 23 C/SCA/5888/2015 JUDGMENT interview. The Court is informed that the personal interviews are commencing from 22.04.2015. Hence, the petitioner has approached this Court by way of the present petition.
5. Mr.G.M.Amin, learned advocate for the petitioner, has submitted that it is stated by the GPSC in the impugned communication that the petitioner fulfils the requirements laid down by the GPSC. If that is so, then it is not understood what conditions in the advertisement the petitioner does not fulfill. The learned advocate for the petitioner has taken the Court through the provisions of Rule 3 of the Assistant Charity Commissioner Recruitment Rules, 1970 ("the Recruitment Rules" for short), and has submitted that the petitioner has the experience of more than seven years as an Assistant and Superintendent in the District Court, Dahod. Referring particularly to Rule 3(iii)(b) of the Recruitment Rules, it is submitted that the requirement of this rule is that the candidate should be an advocate or entitled to practice as such under the Advocates Page 5 of 23 C/SCA/5888/2015 JUDGMENT Act, 1961 ("the Advocates Act"). The legislature, in its wisdom, has used the word `or', therefore, even though the petitioner is not an advocate enrolled under the Advocates Act, the use of the word `or' means that the eligibility criteria is also the entitlement to practice as such under the Advocates Act, which the petitioner possesses.
6. The learned advocate for the petitioner has next referred to the provisions of Section 24 of the Advocates Act and has submitted that as per the provisions of this Section, the petitioner is eligible to be admitted as an advocate on the State Roll. However, by virtue of the fact that she is serving in the District Court, she is unable to enrol herself, which does not take away her entitlement to be enrolled as an advocate.
7. It is next submitted that the petitioner has passed the LL.B. examination in the first class. She has passed the Certificate Course of Computer Concepts. Further, the petitioner Page 6 of 23 C/SCA/5888/2015 JUDGMENT holds a certificate dated 24.06.2005, from the Project Officer, Gujarat State Legal Services Authority, to the effect that she was working as a Clerk at the permanent Legal Services Clinic, Ahmedabad, on a temporary basis, on the establishment of the Gujarat State Legal Services Authority, on a fixed retainership from 01.10.2002 to 07.11.2004. The learned advocate for the petitioner has also referred to a certificate from the Principal District Judge, Dahod, regarding the workexperience of the petitioner. On the basis of the above, the learned advocate for the petitioner submits that the petitioner has the requisite experience and eligibility to enrol as an advocate as per Rule 3(iii)(b) of the Recruitment Rules. She, therefore, deserves to be called for the personal interview.
8. The learned advocate for the petitioner has further contended that after the receipt of the impugned communication, the petitioner has made a representation to the GPSC, asking it to clarify in what way the petitioner does not Page 7 of 23 C/SCA/5888/2015 JUDGMENT fulfil the conditions of the advertisement. As no reply was received to the representation, two reminders dated 24.11.2014 and 02.03.2015, were sent by the petitioner, but to no avail. It is contended that the very fact that the petitioner has appeared in the Primary Test would go to show that she fulfils the eligibility criteria. The action of the GPSC in not calling her for the personal interview is, therefore, unjustified and illegal.
9. That, in the affidavitinreply filed on behalf of the GPSC, it is stated that the said respondent had sought a clarification from the State Government (respondent No.1). It is on the basis of the letter dated 19.02.2015, of the Deputy Secretary, Legal Department, that the GPSC has taken a decision not to call the petitioner for an interview. In the said letter, the State Government has stated that the experience of the petitioner is not equivalent to that of a Civil Judge. Nowhere has it been mentioned that the petitioner is not eligible as per Rule 3(iii)(b) of the Recruitment Rules. Page 8 of 23
C/SCA/5888/2015 JUDGMENT
10. On the basis of the above submissions, the learned advocate for the petitioner has urged that the petitioner be permitted to appear in the personal interview for the post of Assistant Charity Commissioner.
11. The petition has been opposed by Mrs.Kiran P.Joshi, learned advocate for Mr.Premal R.Joshi, learned advocate for the GPSC, by submitting that as per the advertisement, seven posts of Assistant Charity Commissioner are to be filled. The manner in which the said posts are required to be filled has been stated in the advertisement, itself. For filling up the said posts, thirty candidates would fall in the zone of consideration. As per the criteria laid down in the advertisement, it is not as though all the candidates who have participated in the Primary Test are to be called for an interview. Only those candidates who are high in merit on the basis of the Primary Test, and who fulfil all the eligibility criteria laid down in the advertisement and Recruitment Rules, would be called for the interview. In the present case, Page 9 of 23 C/SCA/5888/2015 JUDGMENT the petitioner does not fulfil the eligibility criteria laid down in Rule 3 of the Recruitment Rules. Pursuant to the clarification sought by the GPSC from the State Government, it is clear that the tenure of service of the petitioner does not make her equivalent in rank to a Civil Judge, as is the requirement of Rule 3(ii) of the Recruitment Rules.
12. It is next contended on behalf of the GPSC that the petitioner does not fulfil the requirements of Rule 3(iii)(b), as she is not enrolled as an advocate and is, therefore, not entitled to practice as such under the Advocates Act. Had the petitioner been enrolled as an advocate, she would have been entitled to practice. As such, the petitioner is not eligible as per Rule 3(iii)(b) as well.
13. It is submitted that the contention of the petitioner that she possesses the eligibility to enrol as an advocate, is not relevant, as the Recruitment Rules necessitate that the petitioner ought to be enrolled as an advocate Page 10 of 23 C/SCA/5888/2015 JUDGMENT or entitled to practice as such. If the petitioner is not enrolled as an advocate, she cannot practice as such under the Advocates Act. Therefore, the petitioner, not being eligible on all counts, has rightly not been called for the personal interview.
14. Referring to Rule 49 of the Bar Council of India Rules, it is submitted by the learned advocate for the GPSC, that even if the petitioner had been enrolled as an advocate, she would not have been entitled to practice, as she is drawing salary for her service as an Assistant in the District Court, which is not permissible under the said Rule. Therefore, the emphasis on the part of the learned advocate for the petitioner that the petitioner is entitled to practice is misplaced, in view of Rule 49 of the Bar Council of India Rules.
15. On the strength of the above submissions, the learned advocate for the GPSC has submitted that the petition be rejected.
16. Mr.D.M.Devnani, learned Assistant Government Page 11 of 23 C/SCA/5888/2015 JUDGMENT Pleader, for respondent No.1 - State of Gujarat, has adopted the arguments advanced on behalf of the GPSC and has further submitted that the letter dated 19.02.2015, of the Deputy Secretary, Legal Department of the State Government, has been issued in response to a query by the GPSC, regarding whether the experience gained by the petitioner in her current service is equivalent to that of a Civil Judge, as per Rule 3(ii) of the Recruitment Rules. The answer is in the negative, as the experience of the petitioner as an Assistant and Superintendent, cannot be said to be equivalent to that of a Civil Judge, (Junior Division). There was no requirement to elaborate further regarding Rule 3(iii)(b) in the said letter, as there was no query by the GPSC regarding this provision.
17. The learned Assistant Government Pleader has further submitted that even if the provisions of Rule 3(iii)(b) of the Recruitment Rules are taken into consideration, it is clear that the petitioner is not an advocate or entitled to Page 12 of 23 C/SCA/5888/2015 JUDGMENT practice as such under the Advocates Act, for the simple reason that she has not yet been enrolled as an advocate under the said Act. If the petitioner is not enrolled as an advocate, it is obvious that she is not entitled to practice. The mere eligibility of the petitioner for enrolment as an advocate does not mean that she is already an advocate, or that she fulfils the requirement of the Recruitment Rules for the post of Assistant Charity Commissioner.
18. The learned Assistant Government Pleader has relied upon a judgment of the Supreme Court in the case of Sushma Suri v. Government of National Capital Territory of Delhi and Another (1999)1 SCC 330, wherein the provisions of Rule 49 of the Bar Council of India Rules have been discussed.
19. On the strength of the above submissions, it is prayed that the petition be rejected.
20. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition and other Page 13 of 23 C/SCA/5888/2015 JUDGMENT documents on record, including the reply filed by respondent No.2. This Court has given thoughtful consideration to the submissions advanced at the Bar.
21. At the outset, it would be fruitful to refer to Rule 3 of the Recruitment Rules, which reads as follows:
"3. To be eligible for appointment by direct selection to the post mentioned in rule 2, candidate must
i) be not less than 35 years of age, and
ii) have held or be holding, judicial office not lower in rank than that of a Civil Judge (Junior Division) or any office which, in the opinion of the State Government is an equivalent office, for not less than four years;
or
iii) have been for not less than seven years in the aggregate
a) An Advocate or pleader enrolled and admitted as such under any law for the time being in force prior Page 14 of 23 C/SCA/5888/2015 JUDGMENT to the Commencement of Chapter III of the Advocate Act, 1981; or
b) An advocate enrolled or entitled to practice as such under the Advocates Act, 1961 or
c) An Attorney of a High Court.
Provided that the upper age limit in respect of persons already in service of the Government of Gujarat may be relaxed in accordance with the provisions contained in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967:
Provided further that the upper age limit may be relaxed in case of a candidate possessing exceptionally good qualifications or experience or both."
(emphasis supplied)
22. Though the petitioner fulfils the criteria of age as mentioned in Rule 3(i), according to the letter dated 19.02.2015, of the State Government addressed to the GPSC, the petitioner does not fulfil the eligibility criteria of holding a judicial office not lower in rank than that of a Civil Judge (Junior Division) or an equivalent Page 15 of 23 C/SCA/5888/2015 JUDGMENT office, in the opinion of the State Government, for not less than four years. The petitioner has not disputed the decision of the State Government contained in the letter dated 19.02.2015, in this regard.
23. According to the petitioner, she is eligible as per Rule 3(iii)(b) of the Recruitment Rules as, according to her, she has seven years working experience and the said Rule envisages that the candidate ought to be an advocate or entitled to practice as such. According to the learned advocate for the petitioner, the legislature has used the word `or', therefore, even if the petitioner is not an advocate, she must be held to be entitled to practice as such under the Advocates Act.
24. In order to examine the veracity of this submission, reference may be made to the definition of `advocate' in the Advocates Act, which is as below:
"2(a) "advocate" means an advocate entered in any roll under the Page 16 of 23 C/SCA/5888/2015 JUDGMENT provisions of this Act;"
As per the above definition, an `advocate' means an advocate entered in any roll under the provisions of the Advocates Act. It is an admitted fact that the petitioner has not been entered in the Rolls as an advocate under the Act.
25. The eligibility criteria for a person who may desire to be admitted on the State Roll is laid down in Section 24 of the Advocates Act. According to the petitioner, she fulfils the eligibility criteria and once she leaves service, she can easily be enrolled. According to the learned advocate for the petitioner, she cannot enrol as an advocate due to the fact that she is still serving in the District Court. Rule 3(iii)(b) of the Recruitment Rules states that the candidate must be an advocate enrolled or entitled to practice as such under the Advocates Act. According to the petitioner, the word `or' separates the first three words "an advocate enrolled" from the rest of the Page 17 of 23 C/SCA/5888/2015 JUDGMENT provision, meaning thereby, that any person who is entitled to practice under the Advocates Act, even though he or she may not be an advocate, is covered under this provision.
26. In the view of this Court, there is an inherent fallacy in the submission advanced on behalf of the petitioner. The word `or' appearing in sub clause (b) cannot be construed to mean that a person who is entitled to practice as an advocate under the Advocates Act should not be an advocate. The language of the provision is clear and unambiguous and leads to only one meaning, that it refers to an advocate enrolled or an advocate entitled to practice as such under the Advocates Act. The word `or' refers to an advocate who is enrolled or entitled to practice, and not to a person who is not enrolled as an advocate, therefore, not entitled to practice, such as the petitioner.
27. As per the definition of `advocate', in Section 2(a) of the Advocates Act, an advocate is a person who is enrolled as such in the State Page 18 of 23 C/SCA/5888/2015 JUDGMENT Rolls. It stands to reason, therefore, that a person whose name is not entered in the State Roll under the provisions of the Advocates Act, cannot be called an `advocate' as per the above definition. Such a person, therefore, would not be entitled to practice under the said Act.
28. The Court is not entering into the question whether the petitioner is eligible to be admitted as an advocate on the State Roll, or not. That is not the central question in this petition. Even assuming that the petitioner is qualified to be admitted as an advocate on the State Roll, the fact remains that the mere eligibility to be admitted as an advocate on the State Roll does not mean that the petitioner should be deemed to have been admitted, or has become an advocate, or is entitled to practice as such under the Advocates Act. Eligibility to be admitted to the State Roll is one thing and the actual enrolment as an advocate, so as to be entitled to practice under the Advocates Act, is a different matter altogether. The two cannot be equated or read synonymously, otherwise it would Page 19 of 23 C/SCA/5888/2015 JUDGMENT result in doing violence to Rule 3(iii)(b) of the Recruitment Rules, which can never be the intention of the legislature. A logical construction has to be given to the provision, which is, in itself, clear and free from ambiguity. If the petitioner is not enrolled as an advocate, she is not entitled to practice as such, which is clear from Rule 3(iii)(b).
29. It may be true that the petitioner has passed the LL.B. examination in the first class and has been granted a certificate of experience by the Principal District Judge, Dahod, as well as a certificate by the Project Officer, Gujarat State Legal Services Authority, of working as a clerk at the permanent Legal Services Clinic, Ahmedabad, for a temporary period. It may also be true that the petitioner has proficiency in the use of computers and has passed the Certificate Course of Computer Concepts. However, all these achievements would not help the petitioner if she lacks the basic eligibility criteria as required by the Recruitment Rules and mentioned in the Page 20 of 23 C/SCA/5888/2015 JUDGMENT advertisement.
30. A submission has been advanced on behalf of the petitioner that she has been permitted to appear in the Primary Test, which shows that she fulfils the eligibility criteria. Permission to appear in the Primary Test, by itself, would not entitle the petitioner to be called for a personal interview dehors the Recruitment Rules. It is stated in the affidavitinreply filed by the GPSC that a total number of 775 candidates registered for the Primary Test. The result of the Primary Test which, was conducted on 23.03.2014, was declared on 18.07.2014 and 55 candidates qualified for being considered for the interview, after the scrutiny of applications. The applications were scrutinized by the GPSC as per the provisions of the advertisement and the Recruitment Rules. The petitioner has not been called for the interview since she does not possess the requisite qualifications as per Rule 3 of the Recruitment Rules. This is so stated in the impugned communication dated 11.09.2014. It is further Page 21 of 23 C/SCA/5888/2015 JUDGMENT stated in the affidavitinreply that pursuant to a clarification sought by the GPSC from the Legal Department, State of Gujarat, it was communicated to the GPSC that the petitioner does not have the experience equivalent to that of a Civil Judge (Junior Division) as per Rule 3(ii) of the Recruitment Rules. The aspect that the petitioner does not possess the experience equivalent to that of a Civil Judge as per Rule 3(ii) of the Recruitment Rules is not disputed by the learned advocate for the petitioner. The submissions on behalf of the petitioner hinge on the provisions of Rule 3(iii)(b) of the Recruitment Rules. As has already been stated hereinabove, in the considered view of this Court, the petitioner does not possess the eligibility criteria to appear in the interview as per the provisions of Section 3(iii)(b) of the Recruitment Rules, as the petitioner has not been enrolled as an advocate and is, therefore, not entitled to practice as such under the Advocates Act.
31. Viewed from all angles, there is no infirmity in Page 22 of 23 C/SCA/5888/2015 JUDGMENT the decision of the respondents in taking a decision not to call the petitioner for the interview. For the aforestated reasons, the petition deserves to be rejected, being devoid of merit. It is, accordingly rejected. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 23 of 23