JAYANT JAIRAM ROHEE Vs. MAHARASHTRA PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) These three petitions filed under Article 226 of the Constitution of India can be conveniently disposed of by common judgment, as the question raised in all these petitions is identical. The petitioners in each of the petition are practising lawyers and are practising for a duration of more than three years and less than five years at the relevant time. The Secretary, Maharashtra Public Service Commission published Notification No. 19/2408/D-X on April 2, 1983 inviting applications for 80 posts of Civil Judges (Junior Division) and Judicial Magistrates (First Class) in the judicial service of the State of Maharashtra, Class I. Forty posts, were reserved for candidates belonging to the Backward Classes. The advertisement sets out that to be eligible for appointment, a candidate must (a) ordinarily be not less than 21 years and not more than 35 years of age (40 years in the case of candidates belonging to Communities recognised as Backward by the Government of Maharashtra for purposes of recruitment) on August 3, 1983, (b) have practised as an Advocate, Attorney or Pleader in the High Court or in Courts subordinate thereto for not less than three years on 5th May, 1983 and (c) be certified to have sufficient knowledge of Marathi to enable him to speak, read, write and translate with facility into English and vice-versa. The advertisement contained a note that information common to all posts is given in a separate sheet attached to the Application Form. In accordance with the advertisement, each of the petitioners applied to the Maharashtra Public Service Commission in the prescribed form for being appointed to the post of Civil Judge and Judicial Magistrate. Each of the petitioner was eligible for appointment to the post but was informed by communication from the Secretary of the Commission that they have not been selected for an interview for the post. This action on the part of the Commission has given rise to the filing of these three petitions and a relief sought by the petitioners in direction to the Commission to consider the claim of the petitioners for the post of a Civil Judge by giving call for an interview and by considering the claim of the petitioners on merits.

(2.) In answer to the petitions, Mr. Vithal Ramchandra Gaonkar, Under Secretary of the Commission, has filed returns on November 7, 1983. It is not disputed that each of the petitioners fully satisfies the minimum requirement for the post of Civil Judge (Junior Division) and Judicial Magistrate (First Class). The return claims that in response to the advertisement, the Commission received a large number of applications from the eligible candidates and thereupon in accordance with Instruction No. 7 attached to the application form decided to invite only those candidates who have practised for five years or more for interview. The return claims that the total number of applications were 924 and out of them 834 candidates were eligible. As the number of eligible candidates, claims the Commission, ware disproportionately large in comparison with the number of advertised posts, it was felt desirable to select candidates for interview by laying down certain criteria. In other words, the Commission felt that it was necessary to reduce the number of candidates who can be interviewed by applying a different rule than one stated in the advertisement. It is claimed that the Commission has a right to decide and lay down the principles for selection of the candidates where the number of applications is high. The respondents, therefore, claimed that action of the Commission is not calling the petitioners for interview as they had not practised for a duration of five years for perfectly justified.

(3.) In view of these rival contentions, the question which arises for determination is whether it is permissible for the Commission to introduce a new criteria for determining whether a candidate who is otherwise eligible in accordance with advertisement should be called for interview. The Governor of Bombay, in exercise of the powers conferred by Art. 234, the proviso to Art. 309 of the Constitution of India and Art. 234 reads with the Government Notification in the Home Department, No. 1734/7 dated 17th August, 1953, has made rules after consultation with the Bombay Public Service Commission and High Court of Bombay and the rules are known as "The Bombay Judicial Service Recruitment Rules, 1956" (hereinafter referred to as the 'Rules'). Rule 3 inter alia prescribes that the service shall consist of two Branches, namely, Junior Branch and Senior Branch. The Junior Branch shall consist of Class I Officers including Civil Judges (Junior Division) and Judicial Magistrates of the First Class. Sub-rule (4) of Rule 4 provides for appointments to the post of Civil Judges and Judicial Magistrates and prescribes that appointments can be either by nomination from members of the Bar or, in special circumstances, by re-employment of retired Civil Judges. The appointments are to be made by the Governor in consultation with the Public Service Commission except in the case of re-employment of retired Civil Judges. It further prescribes that the Commission shall invite a representative of the High Court to be present at the interview held by the Commission and the representative may take part in the deliberations of the Commission but shall not be entitled to vote. Sub-rule (4)(iii)(b) of Rule 4 prescribes that the candidate applying for the post of Civil Judge shall, unless otherwise expressly directed, should ordinarily have practiced 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 the applications. It is, therefore, clear that there is a statutory provision prescribing eligibility criteria of candidate applying for the post of Civil Judge. In accordance with these statutory rules, the advertisement issued by the Public Service Commission sets out the three basic requirements needed for appointment to the post of a Civil Judge. As stated hereinabove, it is not in dispute that each of the petitioners was eligible for appointment to the post of Civil Judge on the date of filing of the application before the Commission. The return filed by the Commission does not dispute this fact but claims that it is open for the Commission to prescribe a different criteria to determine whether a candidate who is otherwise eligible should be called for interview or otherwise. Reliance is placed on behalf of the Commission on the not included in the advertisement which provides that information common to all posts is given a separate sheet attached to the Application Form. The reliance is on Instruction No. 7 in this attached form which reads as under :