Gujarat High Court
Bukharee Aezazalee Makhadumalee vs State Of Gujarat & on 4 July, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
BUKHAREE AEZAZALEE MAKHADUMALEE....Petitioner(s)V/SSTATE OF GUJARAT
C/SCA/10994/2012
JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL
APPLICATION NO. 10994 of 2012
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
==============================================================
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 ?
==============================================================
BUKHAREE AEZAZALEE
MAKHADUMALEE....Petitioner
Versus
STATE OF GUJARAT &
1....Respondents
==============================================================
Appearance:
MR
MUKUL SINHA WITH MR SUBRAMANIAM IYER, ADVOCATE for the Petitioner
MR
HS SONI AGP for the Respondent No. 1
LAW
OFFICER BRANCH, ADVOCATE for the Respondent No. 2
MR
AS SUPEHIA, ADVOCATE for the Respondent No. 2
NOTICE
SERVED BY DS for the Respondent No. 1
==============================================================
CORAM:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date :
21/01/2013
01/02/2013
ORAL JUDGMENT
The matter was heard at length at admission stage itself, and as parties pleadings were already on the record the Counsel for the petitioner requested the Court for treating the lengthy arguments as final arguments and dispose the matter finally at this stage itself, as the petitioner who has cleared successfully the competitive examination and viva voce conducted by Gujarat High Court Respondent No.2 hereinabove and whose name has also been included in the Select List finally prepared by the Respondent No. 2 and forwarded to the State, respondent no.1 hereinabove for doing the needful at their end, is illegally and arbitrarily dropped by the Respondent no.1 and passage of usual and longer time may bring about irreversible situation and create equities which may defeat the very cause of justice. The life of select is also only one year from the date of its publication. The Counsels for both the respondents also agreed that this matter may be disposed off finally at admission stage itself as there was nothing more to be added or argued hence the matter is being disposed off finally at this stage by this judgment and order.
The petitioner, a duly selected candidate for the post of Civil Judge by the respondent no.2 and whose name was forwarded to the State Government along with other successful candidates for obtaining opinion of the Competent Authority and doing the needful and who has been dropped from the select list on account of adverse opinion received by the State from the competent authority, and hence who has not been appointed as Civil Judge, has approached this court invoking Articles 14, 16, 234, 235 and 226 of the Constitution of India challenging the action being arbitrary illegal and hence praying that it may be quashed and set aside and appropriate direction and writ in nature of mandamus or any other appropriate writ be issued to the respondents for appointing petitioner as Civil Judge pursuant to his selection by respondent no.2.
Facts in brief leading to filing of this petition, as could be culled out from memo of the petition, deserve to be set out as under.
The respondent no.2 vide advertisement no. RC/0719/2011 dated 4/7/2011 invited applications from the eligible candidates for recruitment to the post of Civil Judges. The petitioner being eligible candidate applied vide his application dated 19/7/2011. The petitioner was invited to take elimination test which was held on 11/9/2011, petitioner was allotted seat no. 3317, the result of the elimination test was declared on 13/9/201. As petitioner succeeded in the elimination test, he was to take main written examination which was conducted on 16/10/2011. The petitioner appeared and succeeded in the main-written examination also as per result declared on 30/11/2011. Out of 368 candidates declared successful in the final test petitioner s name figured at Sr. no. 128. In terms of provision of Clause No. 15(ix) and (x) of the advertisement dated 4/7/2011, petitioner was to submit requisite language certificate and the practice/experience certificate in the prescribed form issued by the competent authority. The petitioner submitted both the certificates. Petitioner was also required to submit character certificate obtained from two respectable persons as required under clause 15 (viii). The petitioner accordingly submitted such character certificates. The petitioner received letter on 8/12/2011 issued by respondent no.2 informing petitioner that as petitioner had succeeding in main examination he was to appear for oral interview (viva-voce) to be conducted on 18/12/2011. Accordingly petitioner appeared for the oral interview held on 18/12/2011. The final select list consisting of 137 candidates against required vacancies was declared by respondent no.2 on 9/3/2012. The petitioner's name figures therein at Sr. no.61. The petitioner received communication on 30/3/2012 from respondent no.1 calling upon the petitioner to remain personally present before Dy. Secretary on 13/4/2012 and submit documents. Police verification was over right in the month of April 2012 as contended by the petitioner. On 1/5/2012 petitioner received communication from Commissioner of Health, Medical Services & Medical Education, Gandhinagar, referring him to medical board for medical test as his name was figuring at Sr. no. 61 in the final select list. Petitioner subjected himself to medical test on 23/5/2012 and after a detailed medical examination the medical board found nothing which could be held against the petitioner, submitted opinion. On 31/7/2012 respondent no.1 displayed list of candidates being appointed to the post of Civil Judges. As per the recommendation of respondent no.2 petitioner's name which was originally at Sr. no. 61 in the select list was not there in the list and hence petitioner was constrained to file present petition on the grounds mentioned there in.
This Court on 16/8/2012 issued notices to the respondents which were made returnable on 3/9/2012. Pursuant to the notice issued by this Court affidavit-in-reply came to be filed on behalf of respondent no.2 on 1/9/2012 and by respondent no.1 on 15/9/2012. This affidavit-in-reply filed by respondent no.2 contained a document dated 30/4/2012 which appeared to be the basis for dropping name of the petitioner from the list as this communication was sent by the competent authority to respondent no.1. The petitioner filed rejoinder dated 29/9/2012 and placed on record relevant documents indicating that communication dated 30/4/2012 was based upon erroneous and incorrect material and data.
This Court (Coram: K.S.Jhaveri, J) therefore on 29/10/2012 after hearing of the concerned passed the following order.
In view of the documents which has come on record, the Registrar General will look into the matter and will recommend the case of the petitioner within two weeks from today.
Therefore, the State Government will reconsider the case of the petitioner within two weeks from the receipt of the recommendation of the Registrar General.
Matter to come up on 03rd December, 2012.
The respondent no.2 preferred Letters Patent Appeal being LPA No. 1486 of 2012 with Civil Application No. 12854 of 2012 challenging the order dated 29/10/2012 on the ground that this order amounts to allowing finally the petition by way of interim order, and further contending that the direction contained in the impugned interim order dated 29/10/2010 was not in consonance with Rule 4 & 7 of Gujarat State Judicial Service Rules 2005, as the Registrar General was not the competent authority as per Rule 4 & 7 and he cannot reconsider the name and said relief is not even prayed. This LPA was admitted and the Division Bench on 8/11/2012 passed following order in Civil Application 12854 of 2012. (Coram: V.M.Sahai and G.B.Shah JJ)
1. It is well settled that by way of interim relief, final relief cannot be granted. By interim order dated 29/10/2012, the learned Single Judge has virtually passed an interim order,which results in granting the final relief at the interim stage. Therefore, the appellant-applicant is entitled for interim order.
2. Rule returnable on 17th December, 2012. Till next date of hearing,the effect and operation of order dated 29/10/2012, passed by the learned Single Judge in Special Civil Application No.10994 of 2012 shall remain stayed.
This Court, specifically inquired of the learned Counsels of the parties as to why hearing of the matter may not be differed till final outcome of the LPA, the petitioner s counsel submitted that the pendency of appeal would not come in the way of petitioner in requesting for treating hearing as final hearing for disposal of the matter, as there was no stay against further and final hearing of the Special Civil Application and against disposal of the matter and as the petitioner has been deprived of fruits of his efforts illegally and wrongfully, early hearing would be in the interest of justice as the pleadings were over and all the sides have made extensive submission. Learned counsel for respondent no.1 & 2 very fairly submitted that there cannot be any objection to treat the submissions as final for final disposal of the matter as in appeal there is no stay against the final disposal and the order of the Division Bench passed in appeal is clearly based on account of fact that the interim order dated 29/10/2012 amounted to virtually granting final relief at the interim stage. Thus, in view of the consensus between learned counsels for the parties for disposing off the matter finally, despite pendency of appeal against interim order, this Court heard the matter finally in view of the fact that a decision on such matter in time would serve end of justice or else many complications would arise which may work as virtually denying justice to parties only on account of passage of time and development of other equities, which in any way cannot be permitted to happen in a writ petition under Article 226 of the Constitution of India.
This is all the more so when counsels for all the parties have agreed for treating their lengthy submissions as final for disposing off the matter as the affidavits that were required to be filed have already been filed on behalf of all the parties and nothing more was required to be added. The undue passage of time and conventionality may result into defeating the very cause of justice. As noted herein above the life of the select list is also only one year from the date of its publication. When High Court on its administrative side is party to a litigation it is all the more duty of all the concerned to act swiftly and avoid those sophomoric and banal trivia usually impeding the course of speedy justice delivery system, and act so as to enliven age old saying that Justice must not only be done but must manifestly be seen to be done.
Learned advocate appearing for the petitioner invited this Court s attention to the recruitment rules and submitted that recruitment rules clearly provide for recruitment procedure to be undertaken by High Court, respondent no.2 and in light of the decision of the Apex Court once the High Court s recommendations for appointment are received, the State i.e. appointing authority is just to carry out orders of the High Court in respect of the appointment. Rule 2(g) defines recruiting authority, means High Court of Gujarat and Rule 4 prescribes that appointing authority for cadre of Civil Judges to be Government of Gujarat. Thus recruitment rule which prescribes two authorities, namely recruiting authority and appointing authority, High Court being the recruiting authority then High Court s recommendations qua recruitment have to be accepted and implemented by the Government and once the recommendation for appointments are received by the State from the High Court then the State authorities have no other option but to simply implement the same in its letters and spirit. Therefore, dropping of the name of the petitioner at the end of the State-respondent no.1 was contrary to the principle of law and violating Article 14 and also contrary to pronouncements of the Apex Court wherein it is unequivocally laid down that the High Court recommendations are binding on the State. Reliance is placed upon the decision in case of State of Bihar And Another Vs. Bal Mukund Sah And Others, reported in reported in (2000) 4 SCC, pg. 640 with special emphasis on para 49 & 58.
Learned counsel for the petitioner submitted that the communication from High Court to the State Government dated 17/3/2012 could not have been construed as giving independent and additional power for scrutinizing and inquiring into suitability and appropriateness of the candidate for being appointed as Civil Judge. Said communication is unfortunately misconceived by the State and State authority called upon the competent authority for giving opinion which was not warranted and hence the resultant opinion & action of dropping of the name of the petitioner becomes vitiated and therefore, the action of dropping of the name of the petitioner required to be quashed and set aside.
Learned counsel for the petitioner invited this Court's attention to the recruitment rules and the advertisement for the post in question and contended that requirement of furnishing certificates namely certificates for knowledge of language and practice having been duly complied with as could be seen from pages 40 & 41, and requisite character certificates from two respectable persons have also been submitted, copies whereof are produced at pages 42 & 43 in this compilation, there was no scope for calling for any other material and use it against the petitioner once his name was sent by the High Court. This exercise of submitting of certificates unless & until they are challenged in any respect would amount to complete compliance of provision of law, recruitment of rules and advertisement and thereafter nothing further was required to be done by any agency as recruitment rules do not provide any certificate with regard to practice, for that only arguing advocates are to be appointed or considered. The calling for an opinion from competent authority as is done by respondent no.2 was also not in consonance with law as that practice amounts to making distinction and discrimination between candidates. There could be a candidate who may not be appearing in court but still eligible for consideration for being appointed as Civil Judge. Thus the communication dated 2/12/2011 (page 190) was the communication which was not required to be issued at all as there exist no authority in law for calling such an opinion at all. Calling for the opinion is contrary to the provision of recruitment rules in question and also violates principle of Article 14 of the Constitution of India as the candidate who has undergone all the rigmarole of elimination test, written test and interview if subjected to an opinion of a competent authority whose word may make or mar his career prospectus can never be called a valid or reasonable dictate of law, rather it goes against the spirit of rule of law. Hence said practice was assailed as mere formality which would in fact yield unfortunate results and is not supported under any provision of law.
At this stage the Court called upon learned counsel appearing for respondent no.2 to explain and indicate the authority of law under which the author of letter dated 2/12/2011 had issued such circular letters to competent authorities, the counsel placed on record the document entitled REPORT OF THE COMMITTEE which indicated that it was report of the Committee of the High Court constituted by the Stranding Committee of High Court in its meeting dated 07.4.2000 for evolving criteria and procedure to be followed for selection of candidates from the Bar for appointment to the post of District Judges. From that report of the Committee dated 4/9/2000 para-8 is sought to be relied upon for showing the authority of law or requirement for calling such an opinion, and it was submitted that this practice was followed in earlier recruitments for the post of Civil Judges which had taken place in 2010, 2011 and at present also i.e. 2012. Thus the consistent practice of calling for such opinion is sought to be justified on account of Committee s Report dated 4.09.2000 and observations of the committee. Learned counsel for respondent no.2 has very fairly conceded that there exists no other support or material which would give justification for such a practice, though he relies upon clause (6) of Rule 8 of the Recruitment Rules of 2005 which gives powers to High Court for providing all that is not already provided in the recruitment rules.
The learned counsel for the petitioner invited this court s attention to page nos. 79 and 80 on the compilation, at the opinion of the competent authority dated 30.04.2012 with its accompanying data sheet and submitted that it was essentially based upon the data mentioned in page 80. The Counsel for the petitioner thereafter invited this court s attention to rejoinder affidavit and it s annexure filed by the petitioner on 29.09.2012 at page Nos. 106 to 112 and page Nos.113 to 168 and contended that the competent authority received incorrect and erroneous information from its office, relying whereon it had formed it s opinion dated 30.04.2012 and hence the same should have been of no consequence. The learned counsel for the petitioner submitted that in affidavit in rejoinder the petitioner has aptly established as to how the data sheet at page 80 was incorrect and erroneous, and the same has not been denied by any one.
The counsel has drawn attention of this court to page 191 i.e. communication dated 12/12/2011 and letter dated 30.04.2012 submitted that Rule 6 & 7 if read in juxtaposition with communication dated 30/4/2012 (page 79) it would unequivocally indicate that the opinion was based upon erroneous feedback and data entry, therefore the matter would have ended there as the said opinion cannot be said to be based upon any valid material. The counsel for respondent no.2 has very fairly submitted that though there appears to be communication dated 12/12/2011 at page 191 same had not been received in recruitment cell and therefore in order to process urgently and complete the recruitment procedures, recruitment committee was appraised of the fact that opinions are awaited and recruitment committee opined on 29/2/2012 that non availability of opinion of the competent authority cannot be held against the selectees by referring to (page 189) para-3 and the said was referred to Standing Committee which also opined on 5/3/2012 and it was put to the Chamber on 9/3/2012 and ultimately it was decided to send to the State with a liberty to the State to take out appropriate inquiry at their end.
Learned counsel for the petitioner also relied upon decision of the Apex Court in case of Union of India Vs. R. Gandhi, President, Madras Bar Association with allied matters, reported in (2010) 11 SCC pg. 1, especially observations in para-52.
The learned counsel for the petitioner contended that when the competent authority s opinion was based upon incorrect information is established and when there was nothing adverse against the petitioner and when the petitioner s name figured in the select list forwarded by the respondent no.2 Gujarat High court the State authorities should have been directed to appoint the petitioner as civil judge or else it would amount to denying employment to a successful candidate for no reason at all. This High Court s interim order itself contained categorical direction based upon the documents which came on record unequivocally indicating that opinion of the competent authority was erroneous and was based upon incorrect data and hence the most appropriate course was to reconsider this aspect and direct appointment of the petitioner as Civil Judge. The High Court respondent No.2 had originally forwarded the name of the petitioner and when the opinion of the competent authority was found to be erroneous and based upon incorrect material and data respondent no. 2 instead of filing letters patent appeal challenging interim order dated 29.10.2012, ought to have simply complied with the interim order in the interest of justice, which would have put an end to entire controversy.
The learned counsel for the petitioner submitted that the opinion of the competent authority qua petitioner s conduct integrity and suitability reiterated in his communications also cannot be said to be based upon any material on record. The competent authority has said that on inquiry with colleagues, and members of the Bar he came to know that petitioner is of doubtful integrity and that he was not suitable for the post. There are averments to this effect in the replies filed on behalf of the respondent no. 1 and 2 but petitioner s categorical averments in his rejoinder, that he inquired with the Bar Secretary and other members as to whether the competent authority had made inquiries about his conduct, integrity or suitability and that they informed him that the competent authority did not make such inquiry at all, have not been denied. The petitioner has also given numbers of matters wherein he appeared after 2008 and has given account as to how he was busy with his LLM and examination preparations, moreover the petitioner has also indicated that he was practicing at three courts in Ahmadabad hence information only from one court may not be held to prove that his mentioning of years of practice was incorrect. In fact when advocate with no experience or zero practice is also eligible for being appointed as per recruitment rules there exists no ground for denying him appointment on such opinion which is not supported by any supporting material. The learned counsel for the petitioner contended that the petitioner has placed on record at page 166 the Certificate dated 14.09.2012 issued by President and Secretary of the Ahmadabad Bar Association City Civil Court compound Ahmadabad indicating that petitioner bears good moral character. The petitioner has placed on record at page 167 the Certificate dated 16.09.2012 issued by Director University School of Law Gujarat University, and on page 168 certificate dated 20.09.2012 issued by the Principal Maneklal Nanavati Law College indicating that petitioner bears good moral character. The Counsel for the petitioner further contended that ordinarily presiding officers of the court i.e. competent authorities are also issuing certificate based upon information and certificate issued by the respective bar association s secretaries only and when the petitioner could produced certificate duly signed by the president and secretary of the Bar Association there existed no impediment in his being appointed as Civil Judge pursuant to his selection by the respondent no. 2.
The petitioner has produced appointment order dated 5.09.2011 issued by the Registrar General High Court of Gujarat appointing him to be Legal Assistant/Law Clerk pursuant to his selection by the Gujarat High Court as he was found suitable for being appointed. It was contended that when Gujarat High Court had considered the petitioner suitable for being appointed as legal assistant/law clerk whose main function is to assist the Hon ble Judges in their research and other similar work and as such post of confidence there was no earthly reasons for not appointing him as civil judge.
Learned counsel for respondent no.2 i.e. recruiting authority submitted that competent authority for appointment being State government; only it can issue appointment order. It is no doubt that the High Court is the recruiting authority but the nomenclature of recruiting authority is required to be construed in light of provision of very Rule which says that appointing authority is the State and therefore recruitment procedure which is undertaken by High Court was complete and over when Registrar General of this Court under his communication dated 17/3/2012 forwarded the recommendation to the State. The State, therefore, was at liberty to or rather obliged to make appropriate inquiry and form its opinion qua appointment of candidates and it would not be correct to contend that once High Court had recommended State did not have any authority to inquire into antecedence of candidate as the High Court itself had given liberty to the State for carrying out the inquiry on the aspects mentioned in the letter dated 17/3/2012. It is therefore within the power of the State to ascertain suitability of a candidate by carrying out verification as mentioned in the letter.
The learned counsel for the respondent no.2 submitted that contention of the learned advocate for the petitioner that the State government ought to have appointed the petitioner on the basis of the recommendations of High Court without any inquiry from the competent authority is incorrect and deserve to be rejected. In fact respondent no.2 categorically asked the respondent no.1 to carry out such inquiries from the competent authority as in respect of six candidates including the present petitioner the opinion of the competent authority had not been received and that was not held against them for rejecting their candidature, and hence their names were sent with specific rider that as the competent authorities opinions in their cases were not available it may be inquired and obtained by the appointing authority directly from the respective competent authorities.
The learned counsel for the respondent no.2 further submitted that the contention of the learned advocate for the petitioner that High Court recommended petitioner s name to Government, respondent no.1 for appointment and hence the respondent no.1 was obliged to obey it without any further inquiry, deserves to be rejected as the recommendation of respondent no.2 qua the six candidates was conditional and in fact had the competent authority s negative opinion in case of the petitioner been available to the High Court s recruitment committee it would have rejected the petitioner s candidature as they have in fact rejected three candidates candidatures bearing seat no. 3078, 4396 and 4786 on account of negative opinions from their respective competent authorities. The counsel for the respondent no. 2 submitted that prior to the forwarding of recommendations vide letter dated 16/17.03.2012 the competent authority s opinion in case of the petitioner could not be placed before the committee may be as it had not reached the concerned or may be because it was not in proper form but fact remains to be noted that the recruitment committee did rejected three candidates candidature on account of such negative pinions as could be seen from their remarks at item no. 20 in their report dated 29.02.2012, and had such negative opinion from the competent authority in case of the present petitioner also placed before the committee than the committee would perhaps have not recommended his case to the respondent no.1 at all as it did not do so in case of three candidates as stated herein above.
Learned advocate for the respondent no.2 apropos the query as to source or authority for issuing circulatory letter dated 2.12.2011, stated, under instructions relying upon the resolution of committee dated 4.09.2000 and paragraph 8 thereof, that was the practice followed in all the recruitments and as such letters were issued even in the recruitment of civil judges which were held in years 2010 and 2011, this time also such practice was followed. But apart from that material there exists no other material in form of any resolution passed in full court chamber meeting or any material from recruitment cell which would show that such calling of opinion was ever authorized by any law, rule or resolution of the Gujarat High Court.
Learned counsel for respondent no.2 could not controvert the contention on behalf the petitioner that the material and data accompanying letter dated 30.04.2012 were incorrect and irrelevant based whereupon the competent authority had opined about the petitioner. However the learned Counsel for the respondent no.2 submitted that the competent authority has reiterated and reaffirmed its opinion about petitioner and as such the same was required to be taken into consideration as subsequent affirming of opinion cannot be said to be based upon the data or material alone. The counsel for the respondent no.2 further contended that the initial opinion of the competent authority reproduced on page 79 in compilation seems to have been based upon the data produced on page 80 but the competent authority s subsequent reiteration and reconfirmation of his opinion qua petitioners conduct integrity and suitability cannot be said to be based upon data at page 80 and rather its made clear that it was based upon competent authority s inquiry with his colleagues and member of the Bar and such opinion therefore could not have been overlooked by the appointing authority. The Counsel placed reliance upon the Apex Court decision in case of Delhi Administration through its Chief Secretary and others Vs. Sushil Kumar reported in (1996) 11 SCC 605 and submitted that antecedences of candidates are very important aspect and same cannot be brushed aside.
The learned counsel for the respondent no.2 submitted that even the High Court has also rejected candidature of such candidates like petitioner in whose case such negative opinions were received from the respective competent authorities. The name of the petitioner was forwarded to State with specific rider that in case of six candidates that included the petitioner, as competent authorities opinion had not been received, the State Government was to inquire on this aspect before appointing them. When the competent authority sent such negative opinion the State Government could not have appointed the petitioner ignoring the same.
Learned AGP Mr. Soni has produced File No. CJM/102012/1101/D for the perusal of this Court to indicate how and in what circumstances the State Government had to drop petitioner s name from the select list and deny him appointment. In reply to the court s query as to whether is there anything else apart from the negative opinion of the competent authority for denying the appointment to the petitioner the learned AGP submitted that apart from the negative opinion of the competent authority there is nothing adverse to the petitioner and it s only on account of the said negative opinion the State could not offer him appointment. The noting in file dated 27/7/2012 clearly indicated that there exists no other material against the petitioner, except the opinion of the competent authority under which petitioner is opined to be not suitable for the post. Learned counsel for the State also submitted that the opinion was received from competent authority as High Court has permitted State in respect of the candidates in whose case opinion of the competent authority had not been received.
The learned AGP submitted that petitioner did not have indefeasible right to be appointed merely on his being in select list. The recruitment rules clearly provide that no candidate in select list will be appointed unless the appointing authority has satisfied itself qua the candidate s suitability for the post in all respect. Learned AGP has submitted that the negative opinion of the competent authority in respect of petitioner could not have been overlooked by the State and hence its action in not appointing petitioner cannot be termed to be arbitrary or illegal.
This Court has heard learned counsels for the parties and perused the records, file and pleadings. Before adverting to the rival contentions of learned counsels of the parties, it is most expedient to set out in detail few indisputable aspects emerging there from, namely :-
I) The post in question is that of Civil Judge governed by the Recruitment Rules called Gujarat Judicial Service Rules 2005 and its amendment.
The Recruitment Rules placed on record of this petition do not include amendment hence this court called for recruitment rules wit amendment of 2011 and has referred to it hereafter.
II) The said Recruitment Rules provide for definition of recruiting authority and it is said to be the High Court of Gujarat. Rule 4 provides for appointing authority and it is said to be Government of Gujarat so far as appointment to the cadre of District Judges and Civil Judges are concerned.
III) The relevant Recruitment rules deserve to be reproduced here under for sake of ready reference:
7.
Civil Judges:
Recruitment to the cadre of Civil Judges shall be made on the basis of aggregate marks obtained in a competitive examination conducted by the High Court.(2)
In order to be eligible for selection by direct recruitment to the cadre of Civil Judges, the candidate
(a)must possess a degree in law from the University established by law in India;
(b) must be practicing as an Advocate in courts of Civil and/or Criminal jurisdiction on the last date fixed for receipt of applications; or must have worked in Courts or other allied departments for at least five years; and
(c) must not have attained the age of thirty five years and must not have completed as on the last date fixed for receipt of applications thirty eight years of age in the case of candidates belonging to Scheduled Caste or Scheduled Tribe.
Provided that if the High Court has made any order under Article 16(4) or 16(4-A) of the Constitution providing reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes the recruitment shall be subject to such order.
8. Competitive examination :-
(1)the competitive examination for recruitment to the cadre of District Judge or Civil Judges shall consist of -
(i) a written examination of not less than two hours duration with 200 maximum marks.
(ii) viva voce test of maximum 50 marks.
the candidates who obtain fifty percent (50%) or more marks in the competitive examination conducted for direct recruitment to the cadre of District Judge or Civil Judge, shall be eligible for being called for viva-vice;
Provided that the candidates belonging to Schedule Caste and Scheduled Tribes who obtain forty five percent (45%) or above marks, in the written examination, conducted for direct recruitment to the cadre of Civil Judges, shall be eligible for being called for viva-voce.
the minimum qualification marks in the Viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge, shall be forty percent (40%) of marks.
Merit list shall be prepared on the basis of total marks obtained in the written examination and Viva-Voce test (interview).
The object of the Viva-Voce Test (interview) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character and intellectual depth and the like, of the candidate.
all necessary procedure not provided for in these rules for recruitment shall be decided by the High Court.] Disqualification for appointment:
-
No person shall be eligible for appointment to the service -
(a) unless he is a citizen of India,
(b) if he is dismissed from service by Central Government or any State Government or U. Ts or any High Court or statutory or local authority,
(c) if he has been convicted of an offence involving moral turpitude or who is or has been permanently debarred or disqualified by any High Court or the Union Public Service Commission or by any recruiting or examination conducting authority from appearing in examinations or selections, if he directly or indirectly influences the recruiting authority by any means for his candidature,
(e) if he is a man, has more than one wife living and if a woman has married a man already having another wife.
10.Recruitment:-
(1)To fill a vacancy required to be filled by promotion the recruiting authority shall take all necessary steps well in advance so as to finalize the list of persons considered eligible for promotion at least 10-15 days before the occurrence of the vacancy.(2)
(i) whenever three or more vacancies required to be filled by direct recruitment occur in a cadre in the service or once in two years, whichever is earlier, the recruiting authority shall, invite by advertisement in the Official Gazette and in at least two newspapers, applications in such form as it may determine from intending candidates, who possess the prescribed qualifications. The advertisement shall indicate the number of vacancies notified for recruitment and the number of vacancies, if any, reserved for the Scheduled Caste, Scheduled Tribes and Other Backward Classes and shall contain all necessary information relating to the recruitment.
It shall also indicate that an additional list of selected candidates would be prepared as per clause (iv),
(ii) The decision of the recruiting authority as to the eligibility or otherwise of a candidate for admission to the written and viva voce examination shall be final. No candidate to whom certificate of admission has not been issued by the recruiting authority shall be admitted for the examination,
(iii) The recruiting authority shall on the basis of [aggregate marks] secured by the candidate, and taking into consideration the orders, if any in force relating to reservation of posts for Scheduled Castes, Scheduled Tribes and Other Backward Classes, prepare in the order of merit, 2[**], a list of candidates eligible for appointment. The number of names of candidates to be included in the list shall be equal to the number of vacancies notified,
(iv) The recruiting authority shall in accordance with the provisions of clause (iii), also prepare an additional list of names of candidates not included in the list of candidates prepared under clause (iii) above, in which the number of candidates to be included, shall, as far as possible, be ten percent of the number of vacancies notified for recruitment or one, whichever is higher.
(v) The lists so prepared under clause (iii) and (iv) above shall be published in the official Gazette and they shall cease to be operative on the expiry of one year from the date of such publication,
(vi) candidates whose names are included in the list prepared under clause
(iii) above shall be considered for appointment in the order in which their names appear in the list and subject to rule 9 and rule-11, they may be appointed by the appointing authority in the vacancies notified under Clause (i) above. Candidates whose names are included in the additional list may be similarly considered for appointment against unfilled notified vacancies after the candidates whose names are included in the list published under clause (iii) above have been appointed. Inclusion of the name of a candidate in any list prepared under clause (iii) or (iv) shall not confer any right of appointment to such candidate.
11. Conditions relating to suitability, fitness and character:-
(1)No person selected for appointment by direct recruitment shall be appointed -
(i) unless the appointing authority is satisfied that he is of good character and is in all respects suitable for appointment to the service, unless he is certified by the medical authority specified by the High court for the purpose that he is medically fit to discharge the duties of the post to which he is selected for appointment.(2)
Every candidate selected for appointment by direct recruitment shall furnish certificates, given not more than six months prior to the date of application, from two respectable persons unconnected with his college or university and not related to him testifying to his character, in addition to the certificate which may be required to be furnished from the educational institution last attended by him.
Thus the advocate candidate has to show that he was practicing advocate on civil or criminal side at least on the last date fixed for receipt of application. Whereas the candidate who is working in the Court or any other department had to show that he was working at least for five years.
The respondent no.2 issued an advertisement being RC/0719/2011 on 4.07.2011 for inviting application for filling in the posts of Civil Judges. The last date for submitting application was 30.07.2011.
The petitioner was eligible and hence he applied vide his application dated 19.07.2011.
The petitioner s seat number was 3317. The petitioner appeared in the elimination test conducted on 11.09.2011 and was declared successful in the results declared on 13.09.2011 hence he was permitted to take main-written examination conducted on 16.10.2011 and on his succeeded there as per its results declared on 30.11.2011 he was invited vide call letter dated 8.12.2011for appearing in via voice to be conducted on 18.12.2011.
The relevant provisions and instructions from the advertisement in questions are reproduced as under :
7.
General Instructions :-
(1)Candidates belonging to General Category born before 30/07/1976, the candidates belonging to Reserved Category (SC/ST/SEBC) as well as Disabled Persons and Ex-Servicemen, born before 30/07/1973 shall not be eligible to apply. Candidates working in Courts and allied Departments born before 30/07/1971 shall not be eligible to apply.(2)
The Candidates who have successfully submitted online applications shall only be eligible for appearing at the Preliminary Examination (Elimination Test).(3)
The decision of the High Court as to the eligibility or otherwise of a candidate for admission to the Preliminary Examination, Main Written Examination and/or Viva-voce shall be final. No candidate, to whom certificate of admission has not been issued by the Recruiting Authority, shall be admitted for the Examination.(4)
The candidates shall have to appear at their own cost for Preliminary Examination / Main Written Examination and Viva-Voce, at the place and time that may be decided by the High Court.(5)
Benefit of reservation shall be granted to the candidates belonging to Scheduled Castes / Scheduled Tribes / Socially & Educationally Backward Classes provided that certificate in respect of reservation as well as non-creamy layer certificate of the current year in case of SEBC candidates, issued by the Competent Authority of the State of Gujarat, is produced by the candidate as and when called for.(6)
Benefit of relaxation in upper age limit & fees shall be granted to the Disabled Persons, provided that certificate in respect of disability, issued by the Competent Authority of the State, is produced by the candidate as and when called for. Whereas, relaxation in upper age limit shall be granted to the Ex-Servicemen, provided Certificate/Identity Card in that respect, is produced by the candidate as and when called for.(7)
Employees working in following Departments are considered as Employees of allied Departments:-
(i) High Court of Gujarat or any Court Subordinate to it.
(ii) Office of the Government Pleader, High Court of Gujarat.
(iii)Office of the Government Pleader,City Civil Court, Ahmedabad.
(iv) Deputy Section Officer of Legal Section of Legal Department.(8)
The list of eligible candidates will be placed on High Court website.
(9)Candidate shall require to download his/her Call-letter from the Gujarat High Court website, by using his/her Application No., PIN No. and Date of Birth, for appearing at the respective Examination/ Viva-voce and the same shall also be sent on his/her E-mail Id.
(10)Candidate shall produce, at the time of appearing for the Preliminary / Main Written Examination/Viva-voce, identity proof i.e. Card issued by the Election Commission of India or Bar Council of the State or PAN Card or Driving License, in original, along with the Call Letter.
(11)A candidate who is found indulging in unfair practices, viz. copying or misconduct during the course of examination, using electronic gadgets or Mobile Phones etc., tampering with question paper, influencing any person concerned with the elimination test or written examination or oral interview will be debarred from appearing for Preliminary Examination (Elimination Test) or Main Written Examination or Oral Interview, as the case may be, for that examination or any number of years or permanently, as may be decided by the High Court.
(12)Result of all examinations will be made available on the High Court website and/or by any other mode that may be decided by the High Court.
(13)Mere success in the examination shall not confer any right to appointment and no candidate shall be appointed to the post unless the Government is satisfied, after such inquiries as may be considered necessary that the candidate is suitable in all respects for appointment to the post.
(14)Candidate should obtain requisite language certificate and Practice/Experience Certificate from the Competent Authority after publication of result of Main Written Examination.
(15)At present, candidates are not required to send copies of any testimonials/ documents to the High Court. They should produce print out of the Online application along-with following original testimonials as well as one set of self attested Xerox copies thereof and recent passport size photograph, at the time of Viva voce to be conducted by the High Court:-
(i) Government Gazette, showing change in name/surname etc. if any;
(ii) School Leaving Certificate or Birth Certificate issued under Birth & Death Registration Act.
(iii) Educational qualifications i.e. mark-sheet and certificates of SSCE, HSCE, Final Year of Graduation, Post Graduation, LL.B.(all years), Post Graduation in Law, etc. as may be applicable.
(iv)Certificates possessing basic knowledge of Computer Application / operation issued by Government or private Institute as set out by Government of Gujarat, in General Administrative Department Resolution Nos.
PRCH-102005-1532-C dated 30/09/2006 and CRR-10-2007-120320-G.5 dtd.13/08/2008.
(v) Certificate/s issued by the Competent Authority of the State of Gujarat, in respect of candidates belonging to Reserved Category (SC/ST/SEBC), as may be applicable and also non-creamy layer certificate of the current financial year, in case of those belonging to Socially & Educationally Backward Classes.
(vi) In case of Disabled candidate (a) a Certificate from a Competent Authority to the effect that he has a disability of not less than 40% and (b) a certificate from the Standing Medical Board at Ahmedabad, to the effect that he would be able to perform the duties of the post in question.
(vii)Sanad / Intimation letter (if in case, applied for Sanad) issued by the Bar Council of the State.
(viii) Certificates given not more than 6 months prior to the date fixed for Viva-voce, from two respectable persons unconnected with his college or university and not related to him, testifying to his character.
(ix) Language Certificate in original issued (I) by the Registrar General, High Court of Gujarat in case of Advocates practicing in the Supreme Court of India / High Court of Gujarat / Courts outside the State of Gujarat, (ii) by the concerned Principal District Judge of the District, in case of Advocates practicing in District Court and/or Taluka Courts District concerned, (iii) by the concerned Principal Judicial Officers of the Courts in the City of Ahmedabad, in case of Advocates practicing in the City Courts at Ahmedabad, as may be applicable,(iv) by the Head of the Department of the Office concerned in case of staff members, in the following manner.
CERTIFICATE This is to certify that Mr./Ms. __________, has sufficient knowledge of Gujarati, Hindi and English so as to enable him/her to speak in the said languages, to write and read the said languages and to translate with ease, from any of the said languages into English and from English into any of the said languages.
This certificate is issued on the basis of Test taken/ Documents verified by the undersigned for producing before the High Court for recruitment to the cadre of Civil Judges pursuant to the Advertisement dated 01/07/2011.
Date:(Seal of the court) Signature of Competent Authority Name of the Court: __________ Note:-
Such certificate shall be issued on taking Test or on the basis of any valid educational documents, after publication of the result of Main Written Examination.
(xii) Practice/Experience Certificate in original issued (I) by the Secretary General of the Supreme Court of India or any other Officer, authorized by him in case of Advocates practicing in the Supreme Court of India / by the Registrar General or equivalent authority, in case of the Advocates practicing in the Courts, outside the State of Gujarat / by the Registrar General, High Court of Gujarat, in case of Advocates practicing in the High Court of Gujarat,
(ii) by the concerned Principal District Judge of the district, in case of Advocates practicing in District Court and/or Taluka Courts of the District concerned and (iii) by the concerned Principal Judicial Officers of the Courts in the City of Ahmedabad, in case of Advocates practicing in the City Courts at Ahmedabad, as may be applicable, and
(iv) by the concerned Head of the Department, in case of staff members, in the following manner:
CERTIFICATE This is to certify that Mr./Ms. ______ has been working / practicing advocate since ________.
As such he/she has completed __________ years in the Department / practice, on the date of advertisement.
This certificate is issued on the basis of the record available with the office of the undersigned for producing before the High Court for recruitment to the cadre of Civil Judges, pursuant to the Advertisement dated 01/.07/2011.
Date : (Seal of the court) Signature of Competent Authority Name of the Court : ___________
(xi) In the case of Legal Assistant / Law Clerks working on the establishment of High Court on contractual basis, the relevant Language Certificate & Practice / Experience Certificate, shall be issued by the Registrar General, High Court of Gujarat. Further, the Legal Assistant / Law Clerks who will qualify in the main written examination, have to produce copies of their respective Appointment Letters, alongwith the Terms of Appointment, at the time of Viva-voce.
The petitioner as recorded herein above furnished the language certificate issued by I/C Principal Judge, City Civil & Sessions Judge, Ahmedabad on 14/12/2011 certifying that petitioner has sufficient knowledge of Gujarati, Hindi and English. Said certificate is reproduced at page-40 of the compilation. The certificate in respect of practice is also produced at page-41 which is dated 14/12/2011, that was also issued by I/C. Principal Judge, City Civil & Sessions Judge, Ahmedabad, indicating that the petitioner is a practicing advocate since 9/7/2007 and the certificate was issued for enabling him to produce the same before the Recruitment Cell of Gujarat High Court for the post of Civil Judge in pursuant to the advertisement dated 4/7/2011. The petitioner also produced character certificates as envisaged and required under Rule 11 (ii) dated 7/12/2011 and 12/12/2011, reproduced with this petition at page 42 & 43. There exists no dispute qua petitioner s qualifications and their veracity, genuineness etc, as the petitioner was found eligible and he was permitted to take the elimination test which was conducted on 11/9/2011 wherein petitioner was successful and he was permitted to take the main written examination held on 16/10/2011, the result was declared. Petitioner had succeeded and hence he was invited for viva-voce.
The respondent no.2 on 9.03.2011 published final select list of 137 candidates wherein petitioner s name figured at serial no. 61.
The petitioner received letter dated 30.0-3.2012 for submitting his documents.
On 23.05.2012 petitioner submitted for medical test and passed therein.
On 31.07.2012 respondent no. 1 published list of candidates to be appointed as civil judges wherein the petitioner s name did not figure meaning there by it was dropped and respondent no. 1 did not offer appointment to the petitioner.
In the Additional Affidavit filed on behalf of the respondent no.2 on 7.1.2013 the deponent has stated as under 1) I state that Recruitment Cell of the Gujarat High Court, vide letter dt. 2.12.2011 called for the opinion in respect of a candidates Conduct Integrity and Suitability to the post in question, from the concerned Principal District Judge or the Principal Judicial Officer. Hereto annexed and marked Annexure X1 is a copy of the letter dt. 2.12.2011. The aforesaid information was required to be furnished latest by 12.12.2011. igh Court sent sent A copy of this circular letter dated 02.12.2011 is produced at Annexure X1 on page 190 on this compilation the relevant part thereof reads as under:
To, Subject: Recruitment to the cadre of Civil Judges in the State Furnishing information for Oral Interview....
Sir/Madam, With reference to the subject noted above, I am directed by the Honourable the Acting Chief Justice and Judges, to state that Oral Interview for recruitment to the post of Civil Judges is scheduled to begin from 15th December, 2011. The list of qualified Candidate/s practicing as Advocates in the Courts of your District, who have been called for Oral Interview, is enclosed herewith.
I am, therefore, to request you to be so good as to furnish your considered opinion about his/her conduct and integrity as well as suitability for the post in question.
The above information may kindly be furnished Confidentially in a Sealed Envelope so as to reach to the undersigned latest by 12th December, 2011.
With regards, The Court specifically inquired of learned counsel representing respondent no.2 as to the source of authority or basis for issuance of communication dated 2/12/2011 (pg. 190) as it s submitted that the Recruitment Cell has issued identical letter in respect of 368/365 candidates who were to be called for interview / viva-voce which was to be conducted from 15/12/2011 to 24/12/2011 and the identical circular letter indicated that the report should reach office of Recruitment Cell of the High Court on or before 12/12/2011. It is also pertinent to note at this stage that the interviews appears to have been conducted as scheduled and after interviews were over the Recruitment Cell made submission on 13/1/2012.
As stated herein above the Counsel for the respondent no. 2 could not produced any specific authorization in form of either chamber resolution or any specific decision or direction by High Court in this behalf except a minutes of meeting of Committee held on 4.09.2000 containing resolution for evolving procedure for recruitment to the post of District Judges. The Counsel for the respondent no. 2 relying upon paragraph no. 8 of the Committee meeting dated 4.09.2000 contended that as per this resolution in earlier recruitment of Civil Judges in the year 2010 and 2011 same procedure was followed and it could be treated as residuary item covered by clause (6) of Rule 8 providing that all necessary procedure not provided for in these rules for recruitment shall be decided by the High Court.
The above referred Committee minutes are entitled as REPORT OF THE COMMITTEE in the first paragraph it s mentioned as under
By a resolution passed at the Standing Committee meeting held on 7.4.2000 this Committee was constituted to evolve criteria and procedure to be followed for selection of candidates from the Bar for appointment to the posts of District Judges .
(emphasis supplied) The paragraph no. 8 thereof reads as under
In respect of the candidates who apply in response to the advertisement the opinion of the Principal Judge and the District Judge as the case may be , within whose jurisdiction the candidate is practicing , shall be obtained regarding his suitability for the post before hi is called for written test.
(Emphasis is supplied) &..
The learned counsel for the respondent no.2 submitted that the Recruitment Cell of this Court made extensive submission dated 13/1/2012 to the Recruitment Committee in respect of the recruitment procedure pursuant to the advertisement dated 4/7/2011 for the post of Civil Judges. Item no. 15 on page-35 under the list of candidates from the other States in whose respect the competent authority's opinion had not been received. Item no. 16 contains names of 11 candidates in whose case either opinion was not received or negative opinion was received. In respect of candidate at Sr. no.1 having seat no. 876 no opinion was received or given. Sr. no. (2) & (3) Seat no. 1449, (4) seat no. 1693 no opinion/ negative opinion are given. (5) For seat no.
2784 opinion not given, (6) seat no. 3078 negative opinion is received from competent authority, (7) seat no. 3317 i.e. present petitioner no opinion is given, (8) seat no. 4396 and (9) seat no. 4789 negative opinion are given, (10) seat no. 5582 it was opined that candidate is not practicing in the Court of Civil Judge, which would amount to no opinion, (11) seat no. 5997 not registered as an advocate and hence no opinion was given.
The Recruitment Committee was requested to consider the submission and the Committee s decision is recorded in the report bearing No. RC/0719/2011 dated 29.02.2012 with regard to these items. The decision of the committee is recorded in para-18, 19 and 20 (excerpts whereof are reproduced in para-3 of the affidavit in reply dated 7/1/2013). Item no. 19 is in respect of note on who have not been qualified on last date of application and item no. 20 is pertaining to negative opinion for 3 candidates i.e. Seat No. 3078, 4396 and 4786. This report was put up to Standing Committee as recorded earlier on 5/3/2012 which was approved by the Standing Committee and thereafter it was put up before the Chamber which held its meeting on 9/3/2012 and thereafter it was passed on to the State under the covering letter dated 16/17-3-2012 for its compliance and action at the end of the State.
How the term Practicing Advocate in the recruitment rules and advertisement is perceived by the Recruitment Cell could be seen from the relevant excerpts of its submission to the Recruitment committee dated 13.01.2012 (10) Practice Certificates :
It may be pertinent to respectfully submit here that as per Section 2(a) of The Advocates Act, 1961 , advocate means an advocate entered in any roll under the provisions of the Act.
Practice includes both acting & pleading and takes in all the normal activities of a legal practitioner. It is difficult to define exactly as to where acting ends and pleading begins. Generally pleading means oral Submission made in the light of the instructions received by the advocate, as also on the material present on the record, while acting amounts to taking some substantial step by a counsel on behalf of his clients, during the pendency of proceedings in a Court. Practice does not mean appearing in Courts only. One can even practice by making himself available for consultation and by giving Legal Opinion, so long as he/she remains on the rolls of, as an advocate.
When a practicing advocate joins the LL.M. Course, as a regular student, he is not required to suspend his practice, and can simultaneously continue with the same. [Karan Jagdish Kaur Vs. Punjab School Ed. Board (1996-3) 114 Puj LR 403.] The Advocates Act, 1961 , inter alia provides that once a person is enrolled by anyone of the State Bar Councils, he becomes entitled to participate in all Courts, including the Supreme Court. This Act, creates one common Bar, all its members being of one Class, namely, Advocates. [Mahesh Chander Gupta Vs. Union of India, 2010 (1) SCJ 102] All candidates who are Advocates have produced their Practice Certificates and 24 Candidates have enrolled their names before the State Bar Councils, only in the current year i.e., 2011. As per Item No.2 of the Advertisement, a Candidate must Practicing as an Advocate in Courts of Civil and / or Criminal Jurisdiction on the last date fixed for submission of on-line application , which was on or before 30/07/2011.
The following excerpts of the report of the Recruitment Committee, dated 29.02.2012 deserves to be set out as under Before closing, we would like to highlight one aspect of recruitment of Civil judges. As per Recruitment Rules, no previous experience for a lawyer is insisted upon. Large number of fresh law graduates who had recently enlisted had therefore, applied and were also shortlisted for being placed in the select list.
(emphasis supplied) Thus conjoint reading of excerpts at item no. XIX and XX would make it abundantly clear that such candidates are not necessarily be appearing in the courts and arguing matters for being classified as practicing advocate and as such eligible for being appointed as Civil Judge, than a very vital question arises as to how far the presiding officer of courts who are termed as competent authorities under letter dated 2.12.2011 could be expected to form an opinion about such candidates conduct, integrity and suitability. Besides its required to be noted that only Principal District Judges and Principal Judge of City Civil Court are treated as Competent Authorities and were called upon to send their opinion in respect of advocate - candidates practicing in courts within their jurisdiction meaning thereby in case of an Advocate-candidate exclusively practicing in Naliya court which falls within the jurisdiction of Principal District Judge Kutchh-Bhuj, being competent authority will have to form an opinion about his conduct integrity and suitability, despite that fact that the candidate had never appeared in his court.
Pursuant to the communication from the High Court Respondent no.2, the State issued letters to the competent authorities in respect of the candidates mentioned in the table and in whose case the High Court opined that non-receipt of the opinion cannot be held against such candidates. However, it was for the appointing authority i.e. the State to obtain opinion from the concerned authorities. Accordingly the letters were sent. It would be appropriate to note here that so far as two candidates are concerned, Delhi Sessions Judge was to opine being appropriate authority as perceived by the State. She in the first instance declined to opine and sent in following reply on 28/6/2012 which reads thus:-
From:
The District & Sessions Judge, Delhi To, The Deputy Secretary to Government, Legal Department, 4, Sardar Bhavan, Sachivalaya, Gandhinagar.
No. 33324/Adv/Gaz/2012 Dated, Delhi the 28 JUN Subject:
Opinion regarding integrity, conduct and Suitability of the candidates selected for the post of Civil Judges, by Hon ble High Court of Gujarat..
Sir, Please refer to your letter No. CJM-102012-1101-D dated 29th May, 2012 on the above noted subject. In this regard I have to state that I do not recollect appearance of Mr. Atul Kumar,Advocate, in any case in my court. So, I am unable to comment regarding his conduct. The question of integrity is between client and Advocate and court does not get opportunity to assess the same. Suitability for the post of Civil Judge can be assessed by his performance in the written examination and/or oral interview. Whenever any counsel appears in a case, we consider the merits of the case and not the merits of the advocate.
Submitted for information.
Sd/-
28/6/2012 ( SUNITA GUPTA) District & Sessions Judge Delhi.
No. /Adv./Gaz/2012 Copy forwarded to:
The Registrar General, High Court of Delhi,New Delhi District & Sessions Judge,Delhi.
However, when State repeated its request through Delhi High Court, the opinion came in respect of two candidates vide letter dated 21/9/2012. Same is also required to be reproduced herein.
The District & Sessions Judge, Delhi To.
The Deputy Secretary to Government Legal Department, New Sachivalaya, Gandhinagar.
No.49214/Adv/Gaz/2012 Dated, Delhi the......
Sub:
Opinion regarding integrity, conduct and suitability of the Candidates selected for the post of Civil Judge, by Hon ble High Court of Gujarat.
***** Sir, With reference to your letter No. CJM-102012-1101-D dated 27.08.2012, received by the undersigned through Hon ble High Court of Delhi, New Delhi vide letter No. 20930/Genl/DHC dated 20th September, 2012, I am to say that as per the verification received from Sh. Murari Tiwari, Hony. Secretary, Bar Council of Delhi, Mr. Atul Kumar and Mr. Ram Kumar Arya, Advocates, bear good moral character and conduct and their integrity is not doubtful in any manner.
I myself have received no complaint regarding their integrity and conduct. The Hony. Secretary of Delhi Bar Council has also certified them to bear good moral character and conduct. Their suitability has already been adjudged by Hon ble High Court by selecting them in written Examination and Interview and as such they are suitable for the post of Civil Judge.
Sd/-
21/9/12 (SUNITA GUPTA) District & Sessions Judge Encl:Copy of opinion of Sh. Murari Delhi Tiwari, Hony Secretary, Bar Council of Delhi.
No. 1918/Adv./Gaz./2012 Dated, Delhi the.......
Copy forwarded for information to: The Registrar General, High Court of Delhi, New Delhi Sd/-
District & Sessions Judge Delhi.
Thus out of total 6, as the positive reply received in respect of 5 only all those 5 candidates were granted appointments, but on account of negative opinion from the appropriate authority it was decided that present petitioner is not suitable for being appointed.
Thus, out of 6 candidates, in whose cases the competent authorities had not given any opinion and whose cases were therefore to be inquired of by the State 5 candidates were appointed in some case subsequently as the opinion of competent authority was received and same being positive, whereas, present petitioner came to be dropped. The Court has, as stated hereinabove, perused the relevant file, which led to deciding the final shape of the list and it is mentioned therein that so far as Sr. No. 61 is concerned having seat No. 3317, the candidate s antecedents were inquired into by the State and as per the letter and communication dated 20.4.2012, the concerned authority was requested to express its opinion, which was received vide communication dated 30.4.2012 through the High Court, which was received by the State on 13.6.2012, wherein, it was mentioned that the said candidate has not filed any vakalatnama in the City Civil Court after 2008 on behalf of any party and he is not suitable candidate for the post. So far as the candidate figuring at 8.1, the report had not reached till the submission was made. So far as candidate at 8.2, Sr. No. 81 having seat No. 3880 is concerned, the details were awaited. Thus, out of 135 recommendations 131 candidates were appointed and submission was made for passing appropriate orders.
The candidates in whose respect the Competent Authority s opinion was awaited and on that basis in the result, they were included in the select list, which culminated into final order dated 31.7.2012, were received and ultimately the orders and further appointments were also came to be made.
The candidates in whose case, as stated hereinabove, the positive opinions were required from the respective Competent Authority were appointed subsequently by notification in the month of September, 2012 or thereabout. This belated appointment did not attach any handicap and they were treated as per the merit list eligible for equal treatment qua others.
The Court has to examine the rival contentions in light of the aforesaid indisputable backdrop of the factual aspects emerging there from.
The rival contentions of the counsels of parties are required to be examined in light of the provisions of Article 234, of the Constitution, the provisions of Gujarat Judicial Service Rules 2005 with its amendments, terms in the advertisement and the selection and recruitment procedure followed which ultimately culminated into appointments of civil judges and exclusion of the present petitioner there from. The recruitment is required to be made strictly in accordance with the Recruitment Rules as amended from time to time and therefore, the non-inclusion of the petitioner in the list of candidates to be appointed as civil judges is required to be viewed from the provisions of Recruitment Rules and the procedure undertaken by the concerned authorities. The Recruitment Rules and the relevant part thereof is already reproduced hereinabove. Therefore, no repetition is required at this stage. The Recruitment Rules clearly provide for Appointing Authority and in the instant case, the Appointing Authority is the State of Gujarat. The definition 2(g) of the Recruitment Rules provides the Recruiting Authority means High Court of Gujarat. Plain and simple meaning of this definition would persuade this Court to clearly hold that so far as the recruitment to the post in question is concerned, the role of High Court is merely that of a Selecting Authority only. As rule 4 of the rules clearly provides that Appointing Authority for the cadre of District and Civil Judges shall be Government of Gujarat only. This being absolutely in consonance with provisions of Article 234 the same has to be bore in mind with the pronouncement of Apex Court in respect of primacy to the judiciary s say in such matters. When the rules are unequivocally clear qua two authorities distinct role there exist no room for overlapping or intersplicing the same. Rule 9 of the rules prescribes disqualifications for appointment which indicates some role and say of the recruiting authority as could be seen from rule 9 (c) & (d). The rule 10
(ii) of the rules attaches finality to the decision of the recruiting authority as to the eligibility or otherwise of candidate for admission to the written and viva voice examination. This cannot be so stretched as to overlap provisions of Rule 11 of the rules. Rule 11 prescribes role of the appointing authority and it s satisfaction qua suitability fitness and character of candidate.
The fact remains to be noted that the appointing authority has rejected petitioner only on account of negative opinion received from the competent authority. The Court is unable to accept submission of the learned counsel for the petitioner that once the name of the petitioner was forwarded by the High Court to the Government it amounted to have been cleared by High Court for appointment and State could not have excluded the petitioner from the list of candidates to be appointed as civil judges. The counsel for the petitioner missed the clear and unequivocal message giving liberty rather casting obligation on the Government to obtain opinions from the competent authorities in respect of six candidates including the present petitioner whose names were separately mentioned in the High court s letter dated 16/17-3-2012 produced at page 72 in the compilation. The Government therefore was left with no choice but to obey the direction and requested the competent authorities to send in their opinions in respect of the six candidates mentioned in the letter dated 16/17-03.2012. Therefore the decision of the apex court in case of State of Bihar And Another Vs. Bal Mukund Sah And Others, reported in reported in (2000) 4 SCC, pg. 640 would be of no avail to the petitioner. As the Government cannot be said to have overlooked or diluted the express direction of the Gujarat High Court in inviting opinions from the respective competent authorities in respect of the six candidates including petitioner.
The learned counsel for the petitioner is correct in his submissions that the opinion dated 30.04.2012 on page 79 could not have been of any consequences as it was based upon the incorrect data from case information system. The latter part of the opinion dated 30.04.2012 clearly indicates that it was based upon the data and information from the case information system enclosed with the letter itself and reproduced on page 80 on the compilation which the petitioner has aptly established to be incorrect by producing copies of documents at page 113 to 146 and 147 to 168. The close perusal of the petitioner s uncontroverted averments in his Affidavit-in-Rejoinder from page 106, 107, 108,109 with annexure from 113 to 146 and 147 to 168 would clearly establish that information contained on page 80 in this compilation and which had gone into forming of the opinion dated 30.04.2012 was erroneous and incorrect. These documents were brought on record of this petition by the petitioner along with his rejoinder which he filed on 29.09.2012 itself and perhaps therefore this court on 29.10.2012 passed an order making unequivocal reference to the documents on record and keeping them in view directed the Registrar General to look into the matter and recommend the case of the petitioner within two weeks from the date of the order and directed the State Government to reconsider the case of the petitioner within two weeks from the receipt of the recommendation of the Registrar General. It has already been stated herein above that this order dated 29.10.2012 was assailed by High Court in the Letters Patent Appeal No. 1486 of 2012 and CA No. 12854 of 2012 and was stayed by the appellate bench. Be that as it may, fact remains to be noted that the averments in rejoinder and copies of the documents have remained uncontroverted till date.
The learned counsel for the respondent no.2 is also not incorrect in contending that the competent authority has in as many as five communications on different dates reiterated it s opinion about the present petitioner and therefore the same is require to be read in its proper perspective. This is also a fact that reiteration and reconfirmation of the opinion indicate that apart from data sheet and information from case information system the competent authority relied upon information gathered from others and thus the opinion of 30.04.2012 could be delinked from the opinion reiterated but one need not lose sight of the fact that what had weighed with the appointing authority was the opinion dated 30.04.2012 which was based upon the erroneous data and incorrect information provided by the case information system of that court, and that was the sole basis for dropping the name of the petitioner from the list of the candidates to be appointed as civil judges. This court cannot delve into opinion expressed by the competent authority as its individual s perception and therefore beyond judicial scrutiny. The opinions of such competent authorities in cases of other three candidates have in fact persuaded the Recruitment Committee of High Court in rejecting their candidature. Therefore at this stage court need not dwell elaborately upon the opinion of the competent authority. Had the competent authority not referred to other sources like colleagues, members of the bar in his subsequent reiterations and merely relied upon the data and information, which turned out to be erroneous and incorrect, for forming opinion perhaps this court would have straight way allowed this petition and issued direction for reconsideration of the petitioner as such an opinion based upon erroneous and incorrect data and information cannot be held out against a candidate for denying him appointment.
This brings the court to consider very vital and substantial question as to whether opinion expressed by competent authorities in respect of candidates conduct integrity and suitability, could be made sole basis for denying them appointments. The answer depends upon various factors and their detailed examination.
The Recruitment Rules 2005 with its amendment of 2011 nowhere provide for inviting opinions from the competent authorities on candidates conduct integrity and suitability. The Rule 11(2) of the recruitment rules provides Character Certificate given not more than six months prior to the date of application, from two respectable persons unconnected with his college or university and not related to him testifying to his character, in addition to the certificate which may be required to be furnished from the educational institutions last attended by him. It is not disputed that petitioner did furnish all these certificates in time. Thus the Circular Letter dated 2.12.2011 at page 190 on the compilation does not get any supports from the recruitment rules for the post of civil judges.
The advertisement no. : RC/0719/2011 DATED 4/07/2011 also did not provide for obtaining such certificate in respect candidates conduct integrity and suitability, from the competent authorities. The clause 7 of the advertisement read from page no. 14 of this compilation contains general instructions sub clause 10 provided for candidates identity proof, sub-clause 14 require the candidate to produce requisite language certificate and Practice /Experience Certificate from the competent authority after publication of the result of the Main Written Examination. Sub-clause 15(i) to (xi) list of testimonials and documents in original to be produced at the time of viva voice. Sub-clause 15(viii) required Certificate given not more than 6 months prior to the date fixed for viva voice from two respectable persons unconnected with his college or university and not relate to him, testifying to his character. Sub-clause 15(ix) required Language Certificate in original issued by the authorities prescribed therein and in Performa prescribed in the advertisement itself. The Note below this provision makes interesting reading Note:
Such certificate shall be issued on taking test or on the basis of any valid educational documents (which are not prescribed) after publication of the result of Main Written Test Sub-clause 15(x) required the candidate to produced Practice / Experience Certificate in original issued by (i) by the Secretary General of Supreme Court of India, or any other Officer , authorized by him in case of Advocates practicing in the Supreme Court of India/ by the Registrar General or equivalent authority, case of Advocate practicing in the Court outside / by the Registrar General , High Court of Gujarat in case of Advocate practicing in the High Court of Gujarat, (ii) by the concerned Principal Judge of the district , in case of Advocate practicing District/ or Taluka Court of the District and (iii) by the concerned Principal Judicial Officer of the Courts in the city of Ahmadabad in case of Advocates practicing in City Court at Ahmadabad as may be applicable and (iv) by the concerned Head of the Department , in case of staff member in the Performa prescribed there under. Thus even the advertisement for the post did not contain any requirement for production of any Opinion on Conduct, integrity and suitability of the candidates issued by the competent authorities, nor did it contain any information that any such Opinion on Conduct, integrity and suitability of the candidates from the competent authority would be called by the recruiting authority and negative opinion would result into rejection of their candidatures.
The fact remains to be reiterated that respondent no. 1 rejected the petitioner and the Recruitment Committee of the respondent no.2 had also rejected the candidature of three candidates bearing seat no. 3078, 4396 and 4786, only on the ground of negative opinion received from their respective competent authorities. The Recruiting Cell of the respondent no. 2 sent Circular Letters dated 2.12.2011 copy whereof is reproduced on page 190 in the compilation and relevant gist whereof is also reproduced in this order herein above, to the Competent Authorities in respect of all the candidates who were called for viva voice. The subject of this letter read thus Recruitment to the cadre of Civil Judges in the State. Furnishing information for Oral Interview&&&..
The interviews were conducted from 15.12.2011 to 24.12.2011 as could be seen from the records. The Recruitment Cell sent this letter to the Principal District Judges / Principal Judicial officer in the Courts in City of Ahmadabad informing them that Oral Interview for the post of Civil Judges is scheduled to begin from 15th December 2011. The list of qualified Candidate/s practicing as Advocates in the Courts of your District, who have been called for Oral Interview, is enclosed herewith.
The letter contains request to the Competent Authorities that I am, therefore, to request you to be so good as to furnish your considered opinion about his/her conduct and integrity as well as suitability for the post in question.
(emphasis is supplied) The letter further contained that The above information may kindly be furnished Confidentially in a Sealed Envelop so as to reach to the undersigned latest by 12th, December 2011.
(emphasis supplied) The subject of the letter dated 2.12.2011 and timing coupled with request for opinion clearly and unequivocally indicates or gives impression that the said opinion was requested for the purpose of oral interview. The Recruitment Rule 8 is entitled as 8.
Competitive examination :- The sub-rule (3) of Rule 8 of the Recruitment Rules read as under
the minimum qualifying marks in the Viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge, shall be forty percent (40%) of the marks and sub-rule (4) of the Rule 8 provides that merit list shall be prepared on the basis of total marks obtained in the written examination and viva-voce test (interview) And the sub-rule (5) of the Rule 8 of the Recruitment rules clearly provides that the object of the Viva-voce Test (interview) is to assess the suitability of the candidate for the cadre by judging the mental alertness, knowledge of law, clear and logical exposition, balance of judgment, power of communication, character and intellectual depth and the like , of the candidate ( emphasis supplied ) The clause no. 5 (II)(B)(2) reproduced on page 13 of the compilation read thus The object of the viva voce is to assess the candidate s mental alertness, knowledge of law, clear and logical exposition, balance of judgment, skills, ethics, power of assimilation , power of communication, character and analytical ability (emphasis supplied) Thus both, the recruitment rules as well as the clauses in advertisement, nowhere indicate that opinion of competent authorities would be a factor or rather sole factor for inclusion or exclusion of candidate in or from the final selection list. The aforesaid extract of recruitment rules and clauses of advertisement clearly indicate that the viva-voce test was meant for assessing candidate s inter alia suitability and character for the post. A vital question arises as to when the Recruitment Rules entrusts only the Interviewing committee interviewing the candidate for viva-voce test with the task and responsibility of assessing the candidate s character and suitability for the post, and when the Recruitment Rules do not recognize any other authority for this purpose how and in what manner the opinion from the various competent authorities in respect of candidate s CONDUCT AND INTEGRITY AS WELL AS SUTABILITY be of any consequence and how such negative opinion could be considered for denying such candidate appointment as it would amount to taking into consideration extraneous material and materials not prescribed in the recruitment rules for rejecting the candidature of otherwise eligible and successful candidate which would be violating provisions of Article 14 and 16 of the Constitution. Besides if the opinion of the Competent Authorities was invited for the purpose of interview than how the same could be used for rejecting candidature of the candidate who has not been rejected by the interviewing committee or who has secured qualifying marks in interview, as the Rule 10(iii) clearly provides that The recruiting authority shall on the basis of aggregate marks secured by the candidate , and taking into consideration the orders, if any in force relating to reservation of posts for Scheduled Cases, Scheduled Tribes and Other Backward classes prepare in the order of merit, a list of candidates eligible for appointment. The number of names of candidate to be included in the list shall be equal to the number of vacancies notified.
Thus there exist no scope of rejection of any candidate whose written as well via voce score warrant his name to be included, only on the ground that the Competent Authority had sent negative or adverse opinion in respect of his Conduct and integrity as well as his suitability for the post . The candidate who is placed in the select list on the basis of his scoring aggregate marks in written examination as well as viva voce is rejected only on the ground of negative opinion sent by the competent authority , which is not guided as to how he has to form his opinion, and which practice has no sanction in law and which is merely his opinion, than it amounts to assigning such opinion an overriding weightage and importance over decision of the interview committee and making it sole decisive factor, as to nullify candidate s success in written as well as oral test which cannot be said to be in conformity with the Recruitment Rule, conditions of advertisement and provisions of Article 14 of the Constitution of India.
It is also important to note that subject timings and contents of the letter dated 2.12.2011, clearly indicate that the opinion of the competent authorities was required for the purpose of via-voce test scheduled from 15.12.2011. It s still remains enigma as to how such opinion of the competent authorities in respect of candidates Conduct and Integrity as well as Suitability to be furnished before interview could be of any avail. I am sure that the opinion was never intended to be placed before the Interview committee as it would amount to undue interference with their assignment of assessing candidate in terms of Rule 8(5) of the Recruitment Rules and clause 4 (B) (2) of the advertisement. The interview committees could not have been aided or guided by such opinions or else it would amount to taking into consideration extraneous material not warranted by Recruitment Rules and terms of advertisement, vitiating the very process of viva voce test. It is all the more so when the Rule 8(3) prescribes that irrespective of candidate s marks in written test if he failed in securing minimum 40% marks out of total 50 marks earmarked for viva voce test than he would not be qualified for being included in the select list for appointment. Thus even if a candidate has secured very high marks in the written test if he failed in securing 20 marks out of total 50 i.e. 40% of 50 marks than he would not be qualified for being included in the select list though Rule 7 (1) and Rule 10.(2)(iii) of Recruitment Rules and Clause 5 (III ) of the advertisement dated 4.07.2011 under the heading Preparation of Select List provide that Selection of the candidates shall be made on the basis of aggregate marks obtained by the candidates in Main Written Exam0ination & Viva-voce . The provision of candidate s obtaining minimum of 40 % i.e. 20 marks in the viva voce test irrespective of his score in written examination, as qualifying marks for inclusion in select list renders the Interview Committee a sole arbiter whose assessment of candidate s suitability and character cannot be permitted to be in any manner influenced or affected by such opinions from competent authorities. It is further require to be noted that the successful candidates were large in numbers hence there were more than one interview committee hence one would safely deduce that in absence of any specific guideline the reaction of the interview commit cannot be uniform qua such opinion. The affidavit in reply filed by the respondent no.2 is absolutely silent on the aspect. In absence of any material or answer from the respondent no.2 of the purpose of calling such opinion from the competent authorities in respect of candidate s Conduct and Integrity as well as Suitability before the viva voce test the only plausible purpose could be inferred is, for deciding their eligibility for permitting them admission into viva voce test as could be seen from the clause
(ii) of Rule 10 of the Recruitment Rules which read as under The decision of the recruiting authority as to the eligibility or otherwise of a candidate for admission to the written test and viva voce examination shall be final. No candidate to whom certificate of admission has not been issued by the recruitment authority shall be admitted for the examination.
The Interview-call letter dated 08.12.2012 issued by the Recruitment Cell to the present petitioner, reproduced on page 44 of the compilation, which must have been identical in its contents except date of issuance and interview in respect of all the candidates invited for viva voce, provided inter alia that Please note that the High Court reserves its right to cancel your candidature in the event of non-fulfillment of any requisite condition or in the event of non production of required documents or non-acquiescence of .. Thus even issuance of interview call letter would not affect the recruiting authority s power to cancel candidate s candidature in given eventualities as enlisted in the rule quoted herein above. But one vital aspect needs to be bore in mind that negative or adverse opinion of competent authority in respect of conduct and integrity as well as suitability of candidate for the post is certainly not one of the eventualities envisaged or even remotely contemplated by the Rule sited hereinabove. Therefore under the Rule10(ii) of the rules Recruiting authority has no power to reject the candidature of candidate in whose respect the competent authority has sent negative or adverse opinion in respect of his Conduct and Integrity as well as suitability for the post. Besides it is all the more so as fact and record reveals that Interview-call letters did not rightly contain any such rider or saving clause. It is also required to be noted that if the opinion of the competent authority in respect of candidates Conduct and Integrity as well as suitability was called for the purpose of Rule10(ii) than it would not have been invited after the initial scrutiny of successful candidates in written examination and finally issuing interview-call letters to candidates calling them for viva voce without any specific reservation or rider in this behalf, nor could have the Recruitment Committee rejected three candidates candidature on account of negative opinion after their successfully clearing and qualifying in viva voce test.
It is required to be noted at this stage that clause 7 in the Advertisement on page 15 in the compilation provide that Employees working in the following department are considered as Employees of allied Departments (i) High Court of Gujarat or any subordinate Court (ii) Office of the Government pleader High Court of Gujarat
(iii) Office of the Government pleader City Civil Court Ahmadabad. (iv) Deputy Section officers of Legal Section of Legal Department. The letter dated 2.12.2011 at page 190 inviting competent authorities opinion in respect of candidate s Conduct and integrity as well as suitability was address to the Principal District Judges and Principal Judicial Officer in respect of Courts at Ahmadabad, but it s not addressed to other Heads of the Departments whose employees are treated as employees of allied Department like offices at serial number (ii) (iii) and (iv) the respondent no. 2 has not clarified as to whether such identical letters were addressed to them or not? The tenor of the letter at page 190 shows that the same could not have been issued, or presumed to have been issued to the Heads of the Offices or Departments enumerated at ( ii) to (iv) also else the language and contents would have been different. If such letters were not addressed to the Head of the Offices in respect of allied office the opinion in respect of such candidates was not called and therefore it amounted to treating similarly situated candidates differently, resulting into violation of principles enshrined in Article 14 of the Constitution of India.
A moot question arises as to when Recruitment Rules as well as the advertisement did not envisage or provided for calling such an opinion from the competent authorities in respect of Conduct and integrity and Suitability of those candidates who were invited for Viva Voce, how the action of respondent no. 2 could be justified. The calling for such opinion would amount to calling for material and information behind the back of the candidates without any authority of law. The Court is unable to agree with the submission of learned counsel for the respondent no. 2 that the entire exercise of calling such opinion under letter dated 2.12.11 be treated as one covered by the provisions of rule 8(6) of the recruitment rules which clearly provides that all necessary procedure not provided for in these rules for recruitment shall be decided by the High Court. This clause would not help the respondent no. 2 as this clause cannot be relied upon to undertake an exercise which is not intended to be done at the end of respondent no.2. Moreover there is no whisper either in the rules or in the advertisement that such an opinion on Conduct and integrity as well as suitability would ever be invited from the competent authorities and that it will have decisive importance. For invoking rule 8(6) of Rule for covering the exercise of inviting such opinion under letter dated 2.12.11 it has got to be shown to be part and parcel of procedure expressly acknowledged, approved and accepted to be followed before issuance of the advertisement itself. The respondent no. 2 has not shown as to under which provisions of law High Court prescribed and incorporated such exercise in respect of the present recruitment procedure. Therefore there exists no legal backing for justifying such an exercise.
The respondent no.2 s counsel, as it is stated hereinabove, could not show any valid authority in the recruitment cell for calling for opinions under letter dated 02.12.2011.
Assuming for the sake of examining without holding that such an exercise was permissible under Rule 8 (6) then also, said exercise is to be approved by the High Court and therefore, unless and until it is shown by the respondent no.2 that the High Court has approved by way of Chamber Resolution for undertaking such an exercise for calling opinion from the Competent Authorities no such exercise as letter dated 02.12.2011 be justified and hence, the resultant opinion should be treated as of no consequence.
The learned counsel for respondent no.
2 attempted to show the authority for issuing letter dated 2.12.2011 relying upon the practice and decision of a Committee of High Court which had held its meeting in 2000. The elaborate discussion in respect of this report of the Committee is made herein above however, at the cost of repetition let it be recorded that the said report of committee does not spell out any authority so as to treat that decision to be decision under Rule 8(6) of the Recruitment Rules. It is required to be noted that the Report of the Committee dated 4.9.2000 was in respect of for evolving criteria and procedure to be followed for selection of candidates from the Bar for appointment to the post of District Judges. The para-1 of the report of the Committee read as under By a resolution passed at the Standing Committee Meeting held on 7.4.2000, this Committee was constituted to evolve criteria and procedure to be followed for selection of candidates from the Bar for appointment to the post of District Judges. The para-8 of the report which is sought to be relied upon by the learned advocate for the respondent no. 2 read as under: 8. In respect of candidates who apply in response to the advertisement, the opinion of the Principal Judge and District Judge, as the case may be, within whose jurisdiction the candidate is practicing shall be obtained regarding his suitability for the post, before he is called for the written test.
Thus, on a plain reading of this two paragraphs of the Committee which was constituted for evolving criteria and procedure to be followed for selection of candidates from the Bar for appointment to the post of District Judges cannot be pressed into service for justifying the letter dated 2.12.2011 unless and until it is established that the Gujarat High Court i.e. the Full Court has endorsed and adopted consciously the procedure for inviting opinion of competent authorities in respect of candidates conduct and integrity as well as suitability. The Counsel for the respondent no. 2, despite given ample opportunity could nor produce any material in form of Chamber Resolution of the High Court endorsing or prescribing such a procedure. When such a procedure is not prescribed by the High Court, than, the letter dated 2.12.2011 addressed by the Recruitment Cell and the resultant opinion would be of no avail as the same would amount to taking into consideration the extraneous material not supported either by Recruitment Rules or the procedure laid down by the High Court in exercise of the powers under Rule 8(6) or the advertisement in question.
The report of the committee dated 4.09.2000 cannot be treated as one passed under the provisions of Rule 8(6) of the Recruitment rules as no material is placed on record to establish that full Court ever adopted and approved such calling for opinion from competent authorities and its consideration for including or rejecting the candidates who have successfully crossed two barriers of securing qualifying marks in the written test as well as viva voce test. The Rule 8(6) empower only the High Court for supplementing lacuna in recruitment process and does not empower Standing Committee or Recruitment Committee for exercising such powers under Rule 8(6) recruitment committee and that too it is to be exercised in advance before the initiation of recruitment process which said to have started with release of advertisement for inviting applications. Once the recruitment process has started even the High Court cannot invoke residuary clause powers under Rule 8(6) as it would amount to changing the rules of game after starting of game as observed by the apex court in case of The apex court has held in case of K.Manjushree Vs. State of Andhrapradesh reported AIR 2008 SC 1470 that once the recruitment process starts no deviation, of subtraction or addition in any form is permissible and it has been once again reiterated by apex court in case of Hemani Malhotra Vs. High Court of Delhi reported in AIR 2008 SC 2103 The relevant observations of the Court are extracted hereunder The question, therefore, which arises for consideration of the Court is whether introduction of the requirement of minimum marks for interview, after the entire selection process was completed would amount to changing the rules of the game after the game was played. This Court notices that in Civil Appeal No. 1313 of 2008 filed by K. Manjusree against the State of A. P. and Anr. decided on February 15, 2008, the question posed for consideration of this Court in the instant petitions was considered and answered in the following terms :-
"The resolution dated 30.11.2004 merely adopted the procedure prescribed earlier. The previous procedure was not to have any minimum marks for interview. Therefore, extending the minimum marks prescribed for written examination, to interviews, in the selection process is impermissible. We may clarify that prescription of minimum marks for any interview is not illegal. We have no doubt that the authority making rules regulating the selection, can prescribe by rules, the minimum marks both for written examination and interviews, or prescribe minimum marks for written examination but not for interview, or may not prescribe any minimum marks for either written examination or interview. Where the rules do not prescribe any procedure, the Selection Committee may also prescribe the minimum marks, stated above. But if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview."
From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for viva voce. Therefore, prescribing minimum marks for viva voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce, test was illegal.
10. The contention raised by the learned Counsel for the respondent that the decision rendered in K. Manjusree (supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417 as well as K.H. Siraj v. High Court of Kerala and Others (2006) 6 SCC 395 and therefore should be regarded either as decision per incuriam or should be referred to Larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K. Manjusree (supra) the court noticed the decisions in (1) P. K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141; (2) Umesh Chandra Shukla v. Union of India (1985) 3 SCC 721; and (3) Durgacharan Misra v. State of Orissa (1987) 4 SCC 646, and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K. Manjusree (Supra) can neither be regarded as Judgment per incuriam nor good case is made out by the respondent for referring the matter to the Larger Bench for reconsidering the said decision. (Emphasis supplied) The very important decision of the Apex Court on these points is in case of Ramesh Kumar Vs. High Court of Delhi reported in AIR 2010 SC 3714 relevant observation could be set out as under: 7. As per the submissions advanced by the learned counsel for the Respondent No. 1, the High Court of Delhi had fixed the said criteria being empowered by the statutory provisions contained in The Delhi Higher Judicial Service Rules, 1970 (hereinafter called 'the Rules"). Rule 10 thereof reads as under :
"The High Court shall before making recommendations to the Administrator invite applications by advertisement and may require the applicants to give such particulars as it may prescribe and may further hold such tests as may be considered necessary." (Emphasis added) The aforesaid statutory provision undoubtedly does not fix any particular criteria or minimum Bench Marks either in the written test or in interview for the purpose of selection. Rule 10 provides that the High Court "may hold such tests as may be considered necessary", it impliedly provides for requirement necessary for assessment of suitability of a candidate. There is no challenge to the validity of Rule 10 in these writ petitions. The question does arise as to whether the Rules enabled the High Court to fix the minimum Bench Marks for interview?
In State of U.P. v. Rafiquddin and Ors., AIR 1988 SC 162; Dr. Krushna Chandra Sahu and Ors. v. State of Orissa and Ors. AIR 1996 SC 352; Majeet Singh, UDC and Ors. v. Employees' State Insurance Corporation and Anr. AIR 1990 SC 1104; and K.H. Siraj v. High Court of Kerala and Ors. AIR 2006 SC 2339, this Court held that Commission/Board has to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify for interview and obtained "sufficient marks in viva voce" which would show his suitability for service. Such a course is permissible for adjudging the qualities/capacities of the candidates. It may be necessary in view of the fact that it is imperative that only persons with a prescribed minimum of said qualities/capacities should be selected as otherwise the standard of judiciary would get diluted and sub-standard stuff may get selected. Interview may also be the best mode of assessing the suitability of a candidate for a particular position as it brings out overall intellectual qualities of the candidates. While the written test will testify the candidate's academic knowledge, the oral test can bring out or disclose overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability to take decisions, qualities of leadership etc. which are also essential for a Judicial Officer.
Reiterating similar views, this Court has given much emphasis on interview in Lila Dhar v. State of Rajasthan and Ors., AIR 1981 SC 1777; and Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. AIR 1987 SC 454 stating that interview can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, co-operativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity with some degree of error.
In Shri Durgacharan Misra v. State of Orissa and Ors. AIR 1987 SC 2267, this Court considered the Orissa Judicial Service Rules which did not provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling provision for fixation of minimum marks in interview would amount to amending the rules itself. While deciding the said case, the Court placed reliance upon its earlier judgments in B.S. Yadav and Ors. v. State of Haryana and Ors. AIR 1981 SC 561; P.K. Ramachandra Iyer and Ors. v. Union of India and Ors. AIR 1984 SC 541; and Umesh Chandra Shukla v. Union of India and Ors. AIR 1985 SC 1351, wherein it had been held that there was no "inherent jurisdiction" of the Selection Committee/Authority to lay down such norms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. "inherent jurisdiction" is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm.
Similarly, in K. Manjusree v. State of Andhra Pradesh and Anr. AIR 2008 SC 1470, this Court held that selection criteria has to be adopted and declared at the time of commencement of the recruitment process. The rules of the game cannot be changed after the game is over. The competent authority, if the statutory rules do not restrain, is fully competent to prescribe the minimum qualifying marks for written examination as well as for interview. But such prescription must be done at the time of initiation of selection process. Change of criteria of selection in the midst of selection process is not permissible.
Thus, law on the issue can be summarized to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum Bench Marks for written test as well as for viva-voce.
In the instant case, the Rules do not provide for any particular procedure/criteria for holding the tests rather it enables the High Court to prescribe the criteria. This Court in All India Judges' Association and Ors. v. Union of India and Ors. AIR 2002 SC 1752 accepted Justice Shetty Commission's Report in this regard which had prescribed for not having minimum marks for interview. The Court further explained that to give effect to the said judgment, the existing statutory rules may be amended. However, till the amendment is carried out, the vacancies shall be filled as per the existing statutory rules. A similar view has been reiterated by this Court while dealing with the appointment of Judicial Officers in Syed T.A. Naqshbandi and Ors. v. State of J and K and Ors. (2003) 9 SCC 592; and Malik Mazhar Sultan and Anr. v. Union Public Service Commission (2007) 2 SCALE 159. We have also accepted the said settled legal proposition while deciding the connected cases, i.e., Civil Appeals @ SLP (Civil) Nos. ....in CC 14852-14854 of 2008 (Rakhi Ray and Ors.
v. The High Court of Delhi and Ors.) vide judgment and order of this date. It has been clarified in Ms. Rakhi Ray (supra) that where statutory rules do not deal with a particular subject/issue, so far as the appointment of the Judicial Officers is concerned, directions issued by this Court would have binding effect.
Thus the relevant observations of the apex court in a three judges bench, extracted and set herein above makes many aspect clear namely as to how and in what manner the recruitment process in respect of judicial officers is to be undertaken and completed. Thus looking to law as it stands today, the Recruitment Rules, the provisions of advertisement and Recruitment process commenced from 4.07.2011 it can safely be deduced that calling for opinion from the competent authorities in respect of the candidates Conduct and Integrity as well as suitability and making such negative opinion basis for rejecting candidature of candidates who have been successful in scoring requisite marks so as to secure their place in the select list , cannot be said to be in consonance with the provisions of Article 14 and 16 of the Constitution.
Now let us examine as to whether even the High Court as Recruiting Authority, before the commencement of recruitment procedure could have prescribed any such procedure for obtaining opinion from respective competent authorities in light of the existing law and Recruitment Rules. The answer is obviously in negative as such a practice or procedure would be opposed to the rule of law, rule of fair play and thus violating principles enshrined in provisions of Article 14 of the Constitution.
The fact that Recruitment Rules do not recognize or define the Competent Authority is to be reiterated at the cost of repetition. The so called competent authority is as could be seen from the letter dated 2.12.2011 only Principal District Judges so far as the candidates are practicing advocates in the Courts within their district and Principal Judges of Courts in Ahmadabad City. When the extracts of the submissions of the Recruitment Cell dated 13.02.2012 and Recruitment Committee s report dated 29.02.2012 clearly and unequivocally indicate that practicing advocate need not be arguing or appearing advocate there cannot be any justification for calling for opinion of the Principal District Judges or Principal Judges from Ahmadabad Courts in respect of candidates conduct and integrity as well as suitability for the post when such candidates advocates need not necessarily practicing or arguing advocate in his court. How Judicial Officer can form an opinion in respect of candidate whom he himself had no occasion to watch or examine. Would it not be preposterous for a Principal District Judge of a vast district having 10 or 15 a Taluka Courts in his district to opine in respect conduct and integrity as well as suitability of a candidate advocate who might be exclusively practicing in Court of remote Taluka and who had never appeared before him? In such situation how can the competent authority even form an opinion? In such situation how a Principal District Judge can ever be insisted to send in his or her opinion? The two letters dated 28.06.2012 and 21.09.2012 received from the Learned District and Session Judge Delhi by the respondent no.1 and placed on record of this petition and referred to in paragraph no. 25(XXI) would aptly demonstrate as to why such exercise of calling opinion is not warranted and is of no consequence.
It is seen that when the Principal District Judge who did not have any personal information and ordinarily he is not suppose to keep such personal information, has to call for such information from the office bearers of Bar Associations or Bar Council and in that event the opinion would be essentially based upon such feedback which is ordinarily not capable of any further verification and hence such opinion cannot be made basis for rejecting a candidate who has successfully crossed two barriers written as well as oral tests.
This brings the Court to consider as to whether respondent no.1 was justified in rejecting the petitioner in light of the provisions of existing recruitment rules and advertisement. As it is stated herein above Rule 9 prescribes disqualifications and if any of it exist than the candidate cannot be appointed. Rule 10(ii) finality of decision of recruiting authority qua eligibility of candidate or otherwise and hence it is required to be read in context of the meaning and plain language of the rule which will confine it to the candidates' eligibility to seek admission into written as well as viva voce tests. Rule 11 of the Recruitment rules inter alia provides for conditions relating to suitability fitness and character where Ruler 11(1) (i) unequivocally recognizes one and only authority i.e. Appointing Authority and its satisfaction of candidate in respect of candidate s character and he being suitable in all respect for appointment to service. Thus Recruiting Authority is adjudging candidates caliber and capacity as well as his merits whereas the appointing authority is to be satisfied with over suitability aspect.
A question arises whether in the instant case rejection of the petitioner by the respondent no. 1 be said to be rejection in exercise of power under Rule 11 (1) (i) the answer has to be in negative as the State sources of verifications namely its intelligence and police verification did not indicate anything averse against the petitioner which would have validly been made basis for rejection of the candidature of the petitioner as held by the Apex Court in case of Sushil Kumar (supra), being adverse material on candidate s antecedence. This judgment cannot have any applicability as antecedent on a tangible material is one thing and antecedent by way of an opinion is a different thing. What is being considered here is opinion and not antecedent . It must be noted here that State Intelligence and similar police agencies are trained to separate grain from chaff and therefore it would report on the basis of verifiable material and input. The respondent no. 1 has rather straight way accepted and acted upon the opinion of competent authority dated 30.04.2012 which in my view cannot be said to be an independent exercise of recording it s own satisfaction for candidates antecedence, especially so when State s own agencies in its police verification did not find anything adverse to the petitioner. Therefore in my view the respondent no.1 could not have validly rejected petitioner and his rejection is therefore illegal and contrary to the provisions of law.
Thus in view of the aforesaid discussion this court is of the considered view that the opinion of the competent authorities in respect of candidates Conduct and Integrity as well as Suitability for the post of Civil Judge cannot legally be taken into consideration either by Recruiting Authority i.e. respondent no.1 or by Appointing Authority respondent no.2 and hence those candidates who have been denied inclusion in select list despite they being otherwise eligible or those like petitioner who have been denied appointment deserves to be reconsidered by the Recruiting Authority as well as by the Appointing Authority ignoring and without being influenced by the opinion of competent authorities in their cases.
Before issuing final directions and parting with this order, this Court is of the view that the Recruiting Authority i.e. High Court may take a re-look at the existing Recruitment Rules and make appropriate suggestion for amendments on the following aspect so as bring them in complete conformity the apex court's directions in case of All India Judges Association & others Vs. Union of India, reported in 2002 (4) SCC 247 The Apex Court has observed in paragraph no. 28 as under:
28.
As a result of the aforesaid, to recapitulate, we directs that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be : (1)
(a) 25 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years' qualifying service; and
(c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible Advocates on the basis of the written and viva voce test conducted by respective High Courts.
(2)Appropriate rules shall be framed as above by the High Courts as early as possible.
Whereas the Gujarat Judicial Service Rules 2005 after its amendment in the year 2011 also provide as under
5.
Method of recruitment, qualification and age limit:-
(1)Recruitment to the cadre of District Judge shall be as under :-
(i) 65 per cent of posts shall be filled in by promotion from amongst the Senior Civil Judge on the basis of principle of merit-cum-seniority and passing a suitability test
(ii) 10 percent of posts shall be filled in by promotions on the basis of merit through competitive examination from amongst Senior Civil Judges having not less than five years qualifying service ( iii ) 25 percent of the posts shall be filled in by recruitment from amongst the eligible advocates on the basis of written and viva voce test to be conducted by the High Court The Apex Court has in case of Ramesh kumar Vs. High Court of Delhi reported in AIT 2010SC 3714 has in paragraph no. 14 observed as under:
14.
In the instant case, the Rules do not provide for any particular procedure/criteria for holding the tests rather it enables the High Court to prescribe the criteria. This Court in All India Judges' Association and Ors. v. Union of India and Ors. AIR 2002 SC 1752 accepted Justice Shetty Commission's Report in this regard which had prescribed for not having minimum marks for interview. The Court further explained that to give effect to the said judgment, the existing statutory rules may be amended. However, till the amendment is carried out, the vacancies shall be filled as per the existing statutory rules. A similar view has been reiterated by this Court while dealing with the appointment of Judicial Officers in Syed T.A. Naqshbandi and Ors. v. State of J and K and Ors. (2003) 9 SCC 592; and Malik Mazhar Sultan and Anr. v. Union Public Service Commission (2007) 2 SCALE 159. We have also accepted the said settled legal proposition while deciding the connected cases, i.e., Civil Appeals @ SLP (Civil) Nos. ....in CC 14852-14854 of 2008 (Rakhi Ray and Ors. v. The High Court of Delhi and Ors.) vide judgment and order of this date. It has been clarified in Ms. Rakhi Ray (supra) that where statutory rules do not deal with a particular subject/issue, so far as the appointment of the Judicial Officers is concerned, directions issued by this Court would have binding effect.
Whereas our Recruitment Rules especially Rule No. 8 promulgated after the judgment in All India Judges Assn supra contains prescription of qualifying marks both in written examination as well as viva voce test.
It cannot be gainsaid that selection procedure has to base upon extremely objective standards declared and made known to all in advance so as to obviate inadvertence intrusion of subjectivity. Therefore if it not possible to dispense with the prescription of qualifying marks in viva voce than at least there should be prescription of distribution of 50 marks of viva voce under different but fixed criteria and the Interview Committee shall strictly adhered to while assessing and adjudging candidate and while giving them mark for their performance under each head so prescribed. In fact where on account of large numbers of candidates are to be interviewed more than one interview committees are appointed than it become all the more essential for prescribing distribution of 50 marks under separate heads. In fact these distributions of 50 marks under different heads for viva voce test should also be declared along with the Advertisement of posts so as to give opportunity to all the candidates to know as to how the interview committee would also assess them.
Thus, in view of the aforesaid discussion this Court is of the considered view that following directions are required to be issued in the interest of justice.
The respondent No.2 i.e. Recruiting Authority under the Gujarat Judicial Service Rules 2005 with its amendment, shall reconsider the candidature of present petitioner along with other candidates, in whose case their candidatures were rejected by the recruitment committee only on account of negative opinion from the competent authority. The respondent No. 2 recruiting authority while reconsidering the same, as if, the negative opinion do not exist on the record and complete the reconsideration exercise and recommend their names if otherwise they are eligible to be appointed on the basis of the merit, to the appointing authority latest by 28.02.2013.
The respondent No.1 i.e. Appointing Authority under the Gujarat Judicial Service Rules 2005 with its amendment shall on receipt of such recommendations from respondent no. 2 consider the names of the candidates so received and carryout its usual verification process in their respect and after due police verification etc. and on their names being cleared in the process, appoint them as Civil Judges. The entire exercise should be over by 07.03.2013 so that appointment orders shall be issued by 08.03.2013. The petitioner and other candidates so appointed, shall be treated as if they were appointed along with others in the merit list and shall thus be entitled to all the benefits of seniority and other service benefits and their late appointment would not be held against them. However, they will be entitled to receive emoluments only on their date of resumption.
(S.R.BRAHMBHATT, J.) pallav Page 80 of 80