KAUSHIK JAGMOHAN UPADHYAYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . This Special Civil Application is to declare Rule 5(3)(b) of the Gujarat Judicial Service Recruitment Rules 1961 which is Annexure-F to the petition as ultra vires unconstitutional illegal and void and to direct the respondent by appropriate writ order or direction to appoint the petitioner to the post of Civil Judge (Junior Division) and Judicial Magistrate First Class in Gujarat Judicial Service Class II (Junior Branch) and to give him the benefit of seniority as if he has been appointed by letter dated 10-6-1986 alongwith other selectees. The short facts of this case are that the petitioner in response to the advertisement issued by Gujarat Public Service Commission dated 30-6-1984 applied for the post of Civil Judge (Junior Division). He was called for elimination test on 30-9-1984 and in that test the petitioner was taken in for the purpose of appearing for interview. On 16-10-1985 the petitioner was called for an interview and selected for the post of Civil Judge (Junior Division) and his name was recommended by the Gujarat Public Service Commission to the Government for appointment. On 19-2-1986 the petitioner was sent for physical fitness test at Surat. Subsequent to that it is the case of the petitioner that he did not hear anything from the authorities concerned and later on 10-6-1986 he came to know that the juniors in the select list got appointed by getting appointment order. On enquiry the petitioner came to know that he has not been given the appointment order on the ground that he has not satisfied Rule 5(3)(b) of the said Rules. Hence the petitioner has come forward with the abovesaid Special Civil Application. It is not necessary to elaborately state the argument of the learned Counsel appearing for the petitioner except stating that if such a rule restricting the selection to only those who practice either in the High Court of Gujarat or Courts subordinate thereto it will definitely offend Arts. 14 and 16 of the Constitution of India. Mr. G. D. Bhatt learned Counsel appearing for the respondent put forth the argument which has been stated in the affidavit-in-reply by the Govern- ment to the effect that the petitioner never practised either in this Honble Court or in any subordinate Court thereto and as such he is not eligible to be appointed as Civil Judge (Junior Division). As far as the present case is concerned only disqualification for the petitioner is that he has not practised either in the High Court of Gujarat or the subordinate Courts thereto. This is an admitted fact. The Gujarat Judicial Service Recruitment Rules 1961 which have been passed by virtue of the Arts. 234 and 309 of the Constitution of India define High Court in Rule 2(d). It states that High Court means the High Court of Gujarat. Explanation reads as under:

(2.) Rule 5 deals with the recruitment of Class II of the Junior Branch. It is to this Branch the petitioner wants to be selected. Rule 5(3)(b) states that: The appointments shall be made from amongst candidates who being members of the Bar have practised as Advocates attorneys or Pleaders in the High Court or Courts Subordinate thereto for not less than three years on the last date prescribed for the submission of application for the post.

(3.) Pressing this rule into service the respondent states that the petitioner having not practised in the Gujarat High Court or the Courts subordinate thereto he has incurred disqualification under Rule 5(3)(b) and as such the respondent correctly did not appoint him as Civil Judge (Junior Division) even though he was selected for the purpose by Gujarat Public Service Commission. It is this provision of the Rules Mr. J. F. Shah questions and states that it is ultra vires Arts. 14 and 16 of the Constitution of India. In support of his contention the learned Counsel brought to our notice the decision in the case of J. Pandurangrao v. A.P.P.S.C. reported in AIR 1963 SC 268. In this decision the Supreme Court had an occasion to consider the case wherein also the question as to whether the selection has to be made from only those Advocates practising in the High Court of Andhra Pradesh or the Courts subordinate thereto has been considered. Dealing with various aspects as far as those facts are concerned the Supreme Court held as under: