advertisement issued by the Commission on
17th December 2008, impugned in the present
Writ Petition, is in consonance with the Rules.
In fact, in the Writ Petition and even during
the course of the argument, there was no
contention raised before us that the impugned
advertisement is violative or ultra vires of the
Rules. The advertisement being in consonance
with the Rules, in law the impugned
advertisement can hardly be faulted. The
argument that the eligibility conditions are
arbitrary and/or discriminatory is also without
any merit. In consonance with the
recommendations of the Shetty Commission,
clear objective is sought to be achieved by the
advertisement for such classification. The
purpose is to capture talent from amongst
fresh Law Graduates for induction into the
service at the very threshold. Other classes
specified under the Rules and in the
advertisement is intended to let Law
Graduates optionally acquire some experience
at the Bar and then take up the entrance
examination. To provide some age difference
between these two classes thus is essential.
This can neither be termed arbitrary nor
discriminatory. These are classes of different
persons belonging to a different class and
persons of the same classes are not being
treated differently. The option lies with the
applicant as to which class he desires to come
in, whether at the threshold or after gaining
experience at the Bar. It is not only a
laudable object but also squarely takes care of
the practical objective and problems which
may arise in appointment of Judges of the
Junior Division. ”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Mr Prashant P Giri,
v
The High Court of Bombay
: A M KHANWILKAR &
R M SAVANT, JJ
Judgment delivered on: 07th May 2010
JUDGMENT [PER R M SAVANT, J]
Rule in all the Petitions and PIL. Rule made
returnable forthwith and heard finally by consent of the
parties.
The above Writ Petition and the companion Writ
1.
Petitions as well as Public Interest Litigation lay a challenge to
the Recruitment Rules to the post of Civil Judge, Junior
Division and Judicial Magistrate First Class. The said
challenge is especially to Rule 5.3(i) and 5.3(ii). In so far
as, PIL No.84 of 2009 and Writ Petition No.3155 of 2009 are
ig
concerned the challenge to the said Rules is on the basis that
though Marathi is declared as a language of the lower Courts,
the said Rules do not provide for a paper in Marathi in the
written examination. The advertisement issued pursuant to
the Rules for filling the posts which were advertised on 17th
December 2008 is also challenged on the ground that choice
of answering the examination in Marathi has not been given.
2
In so far as challenge to the Rules is concerned,
Writ Petition No.8952 of 2009 is treated as the lead matter
and therefore the facts in the said writ petition would be cited
for convenience sake.
The Petitioners in the said writ petition are Law
3
Graduates having obtained the degree of law from various
universities in the State of Maharashtra viz. University of
Pune, Shivaji University, Marathwada Tirth University. The
Petitioners are qualified advocates and are registered with the
Bar Council of Maharashtra and Goa. Some of the Petitioners
have passed five year law course with 1st class. The
Petitioners came across an advertisement issued by the
Respondent No.3 – the Maharashtra Public Service
Commission for the post of C.J.J.D and J.M.F.C. The
examination for the said post was to be held in two stages,
i.e. Preliminary Examination and thereafter all those who
qualified in the Preliminary Examination would be permitted
to appear in the Main Examination and only those who
passed in the Main Examination were to be called for
viva/voce/interview. The advertisement inter alia disclosed
the scheme of selection. The said Scheme as mentioned
herein above involved a written examination followed by
vivavoce The qualifications for the said post mentioned in
the advertisement were as under :
A)
4. Conditions of Eligibility : Any one of the following
A, B, C, D, E or F.
For Advocate, Attorney or Pleader :
Age : As on 1st April, 2009 not less than 21 and not
more
than 35 years.
Qualification :Candidate must hold a degree in law
and must have practiced as an
Advocate, Attorney or Pleader in the
High Court or Courts Subordinates
there to for not less than 3 years on
17th December, 2008.
Note : In the case of Public Prosecutors, their service
in
that capacity will be taken as practice at
the Bar.
B)
OR
For fresh Law Graduates :
Age : As on 1st April 2009 not less than 21 and not
more
than 25 years.
Qualification :
(i) Candidate must has secured the degree
in law by passing all the examinations
leading to the degree in the first attempt
and,
(ii) Has secured in the final year
examination of the degree in Law or in
C)
OR
OR
the case of candidate holding Masters
Degree in Law in final year examination
not less than fifty five percent marks,
Members of ministerial staff to the High Court
D) Members of ministerial staff to the Courts
subordinates to High Court OR
E)
Members of staff working as Legal Assistant and
above in the legal section of the Law and Judiciary
Department in Mantralaya OR
F)
Members of ministerial Staff of the Office of the
Govt. Pleaders attached to those court.
Age : For C, D, E & F – As on 1st april 2009 not less
than 21 and not more than 45 years provided such
employees has put in minimum three years of service
after obtaining degree in law.”
By Notification dated 25th August 2008, the Governor of
Maharashtra, made the rules known as the Maharashtra
Judicial Service Rules 2008 (referred to for brevities sake as
the Rules of 2008) regulating the recruitment to the said post
of CJJD and JMFC in the Maharashtra Judicial Service
wherein under Chapter III Recruitment Rule 5 prescribes the
Method of Recruitment, Qualification and Age Limit. Rule 5.3
(d) & (e) relates to Knowledge of Marathi, reference to the
said Rule would be made in the latter part of this Judgment.
4.
The Preliminary Examination was held on 10th
July 2009 in which all the Petitioners qualified for the Main
Examination. Thereafter Main Examination was held on 30th
ig
September 2009 in which examination all the above
Petitioners were successful. The Petitioners were given call
letters for interview so as to remain present for interview on
various dates between 6th October 2009 to 12th October 2009.
It is the case of the Petitioners that when the Petitioners
they were orally informed that they were not qualified to
appear for the said examination and hence the Petitioners
were not entitled to be called for interview.
entered the office of the Respondent No.3 for the interview,
The Petitioners in all the above Petitions have
been disqualified either on the ground of being over age or
disqualified on the ground of not obtaining degree in law by
passing all the examinations leading to the degree in the first
attempt.
It appears that the Petitioners were communicated
that they were not fulfilling the eligibility condition as
prescribed by the advertisement and therefore appearance of
ig
the Petitioners at the Preliminary Examination as well as Main
Examination was in breach of the Rules.
Aggrieved by the action of the Respondent No.3 in
5.
disqualifying the Petitioners after they having passed the
Preliminary Examination as well Main Examination that the
Petitioners have filed the instant Petitions. In so far as PIL
No.84 of 2009 and Writ Petition No.3155 of 2009 are
concerned, the petitioners in the said proceedings seek to
espouse the cause of Marathi visavis the said examination.
6.
On behalf of the Respondent No.2 an affidavit has
been filed by Shri Sangitrao S Patil, the learned Registrar
(Judicial) of this Court. The claim and contentions in the
above Petitions have been dealt with in the said Affidavit in
reply. The exception carved out in favour of the fresh law
graduates has been justified and explained. The reasons for
requirement of having passed the examinations leading to the
ig
degree of law in the first attempt has also been stated. As also
with.
the Petitioners’ case based on Article 320(5) has been dealt
7.
We have heard Mr.Uday Warunjikar, the learned
counsel appearing for the Petitioners in Writ Petition No.
8952/09. On behalf of the Petitioners Mr.Uday Warunjikar
led the arguments, supplemented by the arguments made by
Shri Ganesh Sovani in PIL No.84 of 2009, Mr.A A Garge in
Writ Petition No.3155 of 2009 and Mr.P S Patil in Writ
Petition No.9437 of 2009.
8.
The submissions of the Petitioners in the above
Petitions as well as the PIL can be segregated in two groups
A]
which are as follows :
SUBMISSIONS AS REGARDS CHALLENGE TO
That the said Rules of 2008, though have been made in
i)
ig
SERVICE RULES 2008 :
RULES 5.3(i) and 5.3(ii) OF THE MAHARASHTRA JUDICIAL
consultation with the Maharashtra Public Service Commission
have not been tabled in both the Houses of Legislature of this
State, and therefore, the procedure as contemplated for
framing the said Rules having not been followed, the said
Rules cannot be implemented.
ii)
That the Rules of procedure made by the Public Service
Commission in exercise of powers under Article 320 of the
Constitution of India have been made by following the
procedure and would, therefore, prevail over the Rules of
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28
2008 made by the Governor under Article 234 of the
iii)
Constitution of India.
That the Rule 5.3.(i) applicable to fresh law graduate
discriminates between two persons belonging to the same
class, inasmuch as the person who has passed all the
examinations leading to the degree of law in the first attempt
ig
is sought to be distinguished from the person who has passed
LL B examination with 55% marks though he might have
availed benefit of A.T.K.T. [allowed to keep terms] in the
preceding examination leading to the examination for degree
in law.
iv)
If the object of the said Rule 5.3 is to facilitate the
selection of a brilliant candidate, the same can be subserved
by the said Rule which provides that in the final year
examination the candidate should have secured not less than
55% marks. The said object can be achieved without having
resort to Rule 5.3(i).
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29
That the candidate who has completed his degree of
v)
law within the period prescribed for the course should be
held eligible notwithstanding the fact that the said candidate
has not passed the semesters in the first attempt.
That the candidates who have availed of the benefit of
vi)
ig
A.T.K.T. [allowed to keep terms] should be held to be eligible
5.3(ii).
for the said post, if they fulfil the criteria mentioned in Rule
vii)
Since the screening test by way of preliminary
under the said Rules, the condition mentioned in Rule 5.3(i)
has no relevance, as only a meritorious candidate has a
chance of selection in terms of the scheme of selection.
examination and thereafter a main examination is also held
viii) Since no separate age limit is prescribed for a candidate
who has passed LL M, the said Rules are arbitrary. The
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30
maximum age limit of 25 years prescribed for candidate
qualifying under Rules 5(3)(i) and 5(3)(ii) is unrealistic and
prevents meritorious candidates who have taken up a degree
course after pursuing studies in other faculties like MBBS,
Engineering etc.
SUBMISSIONS BASED ON DUE IMPORTANCE
B]
i)
ig
NOT BEING GIVEN TO MARATHI LANGUAGE :
That though Marathi has been adopted as a
language in the lower Courts by virtue of the Notification
issued under Section 272 of the Criminal Procedure Code and
Section 137 of the Civil Procedure Code, Marathi is not
included as one of the subjects in the examination held for
the said post of CJJD and JMFC.
ii)
That the facility of being issued Question Paper in
Marathi and facility to answer the said questions in Marathi
has not been offered to the candidates in spite of the
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31
Government decision of making Marathi as the official
language in the lower Courts and the instructions issued by
the High Court as contained in the Circular dated 9th
December 2007 directing the Lower Courts to write
judgments in Marathi, particularly in the matters pertaining
to the applications under Section 125 of the Civil Procedure
Code, cases under Section 137 of the Negotiable Instruments
iii)
ig
Act, simple money suits and like matters.
That the requirement of the candidate to get
certificate from the authorities mentioned under Rule 5(3)(d)
could not serve any purpose, as no guidelines have been
issued to such authorities as on what basis they have to issue
the said certificate.
iv)
That keeping the medium of examination only as
English deprives the candidates from the mofussil areas of
the State from effectively competing at the said examination,
as they are not well conversant with English.
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32
That in view of other States viz. Himachal
v)
Pradesh, Orissa, Rajsthan, West Bengal wherein candidates
are granted facility to write their answer sheets of the
examination in local language, why such a facility cannot be
extended in the State of Maharashtra. If such a facility is
offered the candidates’ knowledge of the local language can
ig
be easily ascertained and thereby need of the candidates to
obtain a certificate to vouchsafe their knowledge of Marathi
would not be necessary.
vi)
That though the concerned Rules mention that a
candidate would have to pass examination in Marathi within
six months of joining the judicial service, the consequence of
not passing the said examination have not been mentioned,
thereby the candidates’ knowledge of Marathi is sought to be
compromised.
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33
The genesis of selecting fresh law graduates
9
CONSIDERATION :
having excellent academic record for direct appointment in
the judicial service was in the Fourteenth Report of the Law
Commission of India wherein the Law Commission has
recommended the recruitment of brilliant young candidates
ig
who can set a higher tone, raise the bar as it were of the
subordinate judiciary. The Law Commission whilst dealing
with the recruitment to the Judicial Services expressed the
view that three years practice at Bar should be prescribed as
one of the minimum qualification of eligibility for entering
into lower judicial service, recruited at the State level.
10
The said issue was also dealt with by the First
Judicial National Pay Commission popularly known as the
Shetty Commission. The said Shetty Commission has left it to
the High Courts and State Governments as the case may be to
select either advocates beyond certain standing at the Bar or
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34
outstanding law graduates having aptitude for judicial
service. The Shetty Commission also recommended a
selection procedure involving a examination followed by
vivavoce test/interview, preferably conducted by the State
Service Public Commission wherein the nominee of the High
Court would be associated. The Shetty Commission
recommended the maximum age of 35 years for eligibility for
ig
selection to the cadre of Civil Judge, Junior Division with
suitable relaxation of three years for the candidates from
backward category.
11
The recommendations of the Shetty Commission
were borne in mind while framing the Rules of 2008 which
govern the recruitment to the post of C.J.J.D and J M F C.
The Rules contemplate the recruitment of candidates having
brilliant academic record and who are below 25 years of age
directly to the said post vide Rule 5.3(i). The said Rules also
provide for recruitment of candidates who have put in three
years of practice and who are not more than 35 years of age.
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35
The recruitment to the said post from the year 2008 has been
carried out in terms of the said Rules.
The said Rule 5.3 in its entirety is reproduced
herein under as also the relevant clause relating to the
knowledge of Marathi Language :
ig
Rule 5. Method of Recruitment, Qualification and Age
Limit In respect of each category of posts specified in
column (2) of the Table ‘C’ below, the method of recruitment
and minimum qualification, age limit, etc. shall be as
specified in the corresponding entries in columns (3) and (4),
thereof, namely
TABLE `C’
Sr. Cadre Method of Qualifications, age limit, etc.
No. Recruitment
1 2 3 4
3 Civil
Judge,
Junior
Division
(A)
By (a)
Educational
nomination on Qualification. Must hold a
the basis of Degree in Law.
aggregate marks (b) Experience. Must have
obtained in practiced as an Advocate in
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36
competitive
the High Court or Courts
examination
subordinate thereto for not
conducted by less than three years on the
the Commission date of publication of
in terms of the Advertisement; or
Examination
Must be a fresh Law
Scheme as may Graduate who,
be framed by
the High Court. (i) has secured the degree in
law by passing all the
examinations leading to the
degree in the first attempt.
ig
(ii) has secured in the final
year examination of the
degree in Law or in the case
of candidates holding
Master’s Degree in Law in
final year exam, not less than
fifty five percent marks; or
(Emphasis supplied)
Must be working or must
have worked as Public
Prosecutor or Government
Advocate for not less than
three years in the post or
posts. In computing the
period of three years the
period during which the
candidate has worked as an
Advocate shall also be
included ; or
Must be a member of
Ministerial Staff
(i) of High Court or Courts
Subordinate thereto; or
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37
(ii) of Offices of the
Government
Pleaders
attached to those Courts; or
ig
(iii) working as Legal
Assistant and above in the
Legal Section of Law and
Judiciary Department in
Mantralaya provided such
employee has put in
minimum three years of
service after obtaining
Degree in Law.
(c) Age – Not less than
twenty one years and not
more than;
(i) thirty five years in the
case of Advocates with three
years practice,
(ii) twenty five years in the
case of fresh law graduates,
(iii) forty five years in the
case of ministerial staff.
Provided that, upper age
limit in each of the above
categories may be relaxed by
five years in respect of
candidates belonging to
communities recogtnised as
backward by the Government
for the purpose of
recruitment.
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38
(d) Knowledge of Marathi :
Candidate must have
sufficient knowledge of
Marathi so as to enable him
to speak, read and write in
Marathi and to translate with
facility from Marathi into
English and vice versa. Such
knowledge must be certified,
ig
(i) in case of an Advocate by
the Principal District Judge
of the District where he
practices;
(ii) in case of a fresh law
graduates, by Principal or
Head of the College or
University department where
the candidate was enrolled
for LL.B or LL.M Degree;
(iii) in case of members of
Staff, by the Head of the
Office under whom such
candidate is working.
(iv) in special circumstances,
by reemployment of retired
Civil Judges (Junior
Division);
(e) the candidates must pass
Marathi language test within
six months as per
Government Rules.
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39
12
of Marathi are incorporated in the Advertisement.
The said Rules prescribing the qualifications and knowledge
The advertisement for the said post issued on 17th
December 2008 was challenged by the Bar Council of
Maharashtra and Goa by filing Writ Petition No.368 of 2009.
The judgment in the said Writ Petition is reported in 2009(4)
ig
Mh.L.J 112 in the matter of Bar Council of Maharashtra
and Goa Mumbai v/s. State of Maharashtra & anr.
Though there was no specific challenge in the said
13
Writ Petition that the advertisement was in contravention or
ultra vires the rules, the said advertisement was challenged
on the ground that the eligibility conditions were arbitrary
and/or discriminatory. The said eligibility conditions or
qualifications were based on Rule 5.3 as in the instant case.
The contention of the Petitioner in the said writ petition was
that the persons belonging to the same class are sought to be
treated differently. The said contention was negatived by the
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40
Division Bench of this Court by holding that the purpose of
having different age criteria for two classes was neither
arbitrary nor discriminatory since the purpose was to capture
talent from amongst fresh law graduates whereas other
category was that of law graduates optionally acquire some
experience at the Bar and the take up the entrance
ig
reproduced herein under :
examination. Para 4 of the said Report is material and is
4. These Rules are statutory rules and the
advertisement issued by the Commission on
17th December 2008, impugned in the present
Writ Petition, is in consonance with the Rules.
In fact, in the Writ Petition and even during
the course of the argument, there was no
contention raised before us that the impugned
advertisement is violative or ultra vires of the
Rules. The advertisement being in consonance
with the Rules, in law the impugned
advertisement can hardly be faulted. The
argument that the eligibility conditions are
arbitrary and/or discriminatory is also without
any merit. In consonance with the
recommendations of the Shetty Commission,
clear objective is sought to be achieved by the
advertisement for such classification. The
purpose is to capture talent from amongst
fresh Law Graduates for induction into the
service at the very threshold. Other classes
specified under the Rules and in the
advertisement is intended to let Law
Graduates optionally acquire some experience
at the Bar and then take up the entrance
examination. To provide some age difference
between these two classes thus is essential.
This can neither be termed arbitrary nor
discriminatory. These are classes of different
persons belonging to a different class and
persons of the same classes are not being
treated differently. The option lies with the
applicant as to which class he desires to come
in, whether at the threshold or after gaining
experience at the Bar. It is not only a
laudable object but also squarely takes care of
the practical objective and problems which
may arise in appointment of Judges of the
Junior Division. ”
Though in the said Writ Petition, as mentioned
14
above, there was no specific challenge to the Rules 5.3(i) and
5.3.(ii), the advertisement which was issued on the basis of
the said Rules, was upheld by this Court and thereby the
aforesaid Rules 5.3(i) and 5.3(ii) have received the
imprimatur of this Court. In our view, therefore, the issue as
regards carving out of the said two categories of candidates
is no more res integra and is concluded by the judgement of
the Division Bench (Supra).
However, since in the instant writ petitions, the
Rules are sought to be challenged, we thought it appropriate
to examine the contentions advanced on behalf of the
Petitioners in that respect. The submissions advanced on
behalf of the Petitioners, which we have reproduced herein
above, in so far as Rules. 5.3.(i) and 5.3(ii) are concerned, as
can be deciphered, are more on the interpretation of the said
Rules rather than challenging the vires of the said Rules on
the touchtone of Part III of the Constitution of India.
16.
We would now proceed to deal with the
submissions addressed on behalf of the Petitioners.
The submission of the Petitioners that the Rules of
2008 cannot be applied in view of the fact that the said Rules
have not been placed before both the Houses of Legislature as
mandated by Article 320(5) of the Constitution of India is
misfounded. The Rules of 2008 have been made under the
exercise of powers under Article 234 of the Constitution of
India and are not referable to Article 320(5) of the
Constitution of India. The said Rules, therefore, are not
required to be placed before both the Houses of Legislature,
and therefore, the said submission of the Petitioners is borne
out of a misconception of the legal position.
ig
The contention of the Petitioners that since the
procedure prescribed for placing the Rules before both the
Houses of Legislature has not been followed and therefore the
Rules framed by the Public Service Commission would apply
cannot be countenanced for two fold reasons, firstly that the
Rules framed under Article 234 of the Constitution of India,
do not require such procedure to be followed before they are
brought into force and, secondly in view of the decision of
the Apex Court reported in 2007(3) SCC 720 in the matter
of Sanjay Singh & Anr. v/s. U P Public Service Commission,
Allahabad and ors. wherein the Apex Court has held that
where the Judicial Service Rules contain specific provision
with regard to any aspect of a matter, such provision will
prevail and the Rules framed by the Public Service
Service Rules will be inapplicable.
17
Commission to the extent it is inconsistent with the Judicial
In so far as requirement of the Rule 5.3(i) that the
candidates should have passed all the examinations leading to
ig
the Degree in first attempt is concerned, the same, in our
view, is having a nexus with the object sought to be achieved
viz. direct selection of a brilliant law graduate in the judicial
service. The emphasis therefore is on academic excellence all
through out and not only in the final year. The contention
advanced on behalf of the Petitioners that passing the degree
examination with 55% marks, as provided in Rule 5.3(ii),
would serve the purpose, therefore, cannot be accepted. As
can be seen, an exception has been carved out by the Rules in
favour of brilliant law graduates who can be recruited directly
even without spending any time at the Bar. The said Rule,
therefore, as held by the Division Bench, has carved out a
separate class by itself and therefore the requisites for
belonging to the said class have to be strictly adhered to, and
there cannot be any compromise in that behalf. For the same
reason a candidate who has availed of the benefit of ATKT in
any of the years cannot be held to be a candidate who has
secured the degree in law by passing all the examinations
leading to the degree in the first attempt. It is required to be
ig
noted that ATKT is a facility offered to a student who has
failed in a particular subject or subjects to keep terms for the
next year so that he does not loose an academic year. Such an
indulgence shown to a student would not detract from the
fact that the student has failed in a particular year.
In so far the case of a candidate who could not
appear for a particular semester or examination on account of
unforeseen circumstances is concerned, the rules being in the
nature of subordinate legislation have not made any
distinction in respect of such cases, the rigours of the rules
would therefore apply to such a candidate also.
The contention of the Petitioners that in view of
the selection process involving a preliminary examination and
thereafter written examination and interview, there was no
need to fix the qualification as prescribed by Rule 5.3(i) and
5.3(ii) in our view is misconceived. It is well settled that the
appointing authority is within its power to prescribe a
ig
minimum eligibility criteria for the post in question. See 2008
(6) Mh.LJ 302 in the matter of Kum.Jayshree Zine and ors
v/s. Maharashtra Public Service Commission and anr. The
process of selection involving a preliminary examination and
written examination are only a aid to prune down the number
of eligible candidates so as to narrow down the zone of
consideration for selection.
18
The next contention advanced on behalf of the
Petitioners that the requirement of passing in the first attempt
should be restricted to the semesters in the last two years of
the five years course as it is the last two years which lead to
the degree in law as the first three years lead to the degree in
BGL Mumbai, BSL or BLS in Pune University and the
Marathwada University or that the marks of the final year of
the three years course should only be taken into
consideration. The said submission, in our view, cannot be
countenanced and has to be rejected for two fold reasons,
firstly the requirement of the Rule is that the candidate
should have secured 55% in the final year by passing all the
examinations leading to the degree in law in the first attempt
and secondly considering the scheme of both the three years
and five years courses.
The five years course leading to the degree of law
is an integrated course where different subjects are taught in
each year of the five year course. Though the degree of BGL
or BSL is granted after three years, the same is at
intermediate stage and part of the integrated course towards
degree of law.
In so far as three years course is concerned, the
same analogy as applicable to the five years course will have
to be applied for not taking into consideration the marks of
only the final year. The rule in so far as it prescribes that a
candidate should have passed all the examinations leading to
the degree in law, therefore has a rationale and consequently
a nexus with the object sought to be achieved which we have
already spelt out in the earlier part of this judgment.
In so far as fresh law graduate is concerned, as
mentioned herein above, academic excellence is expected
through out the five years course or three years course and it
is on the said basis an exception is carved out by the Rules in
their favour. Any dilution of the requirement would,
therefore, negate the purport and intent of the said exception
carved out to capture fresh law graduates for induction into
judicial service.
A useful reference could be made to a
Division Bench Judgment of this Court to which one of us
A.M.Khanwilkar, J. was a party, reported in 2010(1) Bom.C R
829, in the matter of Prajakta Savarkar Shinde v/s. Union
of India and ors. In the said case a somewhat similar
contention was raised as is sought to be raised in the instant
petition, which was negatived by the Division Bench. The said
ig
case concerned admission to the one year orientation course
for Engineering Graduate and Science Post Graduates (OCES
conducted by Department of Atomic Energy for 20092010).
The information brochure published interalia contained the
qualification required for admission to the said course. The
said qualification read as under :
“A. Qualifying Degrees and other Academic
Requirements for OCES/DGFS
(a) For Engineering Disciplines (codes 2129):
BE/BTech/BSc (Engineering) with a minimum of
60% marks in any of the engineering disciplines
mentioned in Table1 and valid GATE Score in the
same engineering discipline as the qualifying
degree discipline. Those having qualifying degree
in branches like Aerospace, Automobile,
Industrial Production, Reliability, Ceramics,
Mining, BioMedical Electronics/Instruments,
Communication, Information Technology, Master
of Computer applications, Dyes & Dye
Intermediates, Electrochemical, Energy Systems,
Oils & Fats, Paints & Varnishes, Petrochemicals,
Plastics, Paper, Sugar Technology, Textiles, etc. are
not eligible.” (emphasis supplied) ”
The scheme for selection involved a Written
Examination vivavoce and Medical Test. The Petitioner in the
said case had secured 64.65% marks in the first year of
ig
Engineering, 66.81% marks in the second year, 61.04% marks
in the third year and 59.25% marks in the fourth year. The
average of the aggregate marks obtained by her for all the
four years came to 62.93%. The Petitioner was allowed to
appear for the written examination and interview which she
passed and thereafter also cleared the medical test. However,
the Petitioner was not considered for selection on the ground
that she had not obtained 60% marks at the final year
examination of Engineering which was the qualifying
examination.
It was contended on behalf of the petitioner in the
said case that since the Petitioner had secured more than 60%
marks as “average of marks” secured at the examinations held
for all the four years of Engineering she should be held as
fulfilling the eligibility criteria. The said contention was
negatived by the Division Bench of this Court by observing
that the candidate must have secured minimum 60% marks in
the qualifying examination in the core Disciplines namely the
“final examination” after which degree is awarded to the
ig
applicant in terms of the Statute, Ordinance, Rules and
Regulations of the University. Paras 8 and 9 of the said
Judgment are relevant which read thus :
“8 We are not concerned with the other
disciplines in the case on hand. The question is
whether the above condition spells out that the
candidate should have secured minimum 60%
marks at the “final year” of Engineering/Post
Graduate post examination or is it possible to
construe the same to mean that the candidate
should have secured more than 60% marks as
“average of marks” secured at the examinations held
for “all the four years” of Engineering/Post Graduate
Course Examination. On plain language of this
stipulation, we have no hesitation in taking the view
that the same postulates that the candidate must
have passed in Engineering Discipline
BE/BTech/BSc (Engineering) and secured minimum
of 60% marks in the concerned Engineering
Discipline as the qualifying degree discipline. In
other words, the candidate must have secured
minimum 60% marks in the qualifying examination
in the Core Discipline, namely, the “final
examination” after which degree is awarded to an
applicant in terms of the Statute, Ordinance, Rules
and Regulations of the University. Very recently we
had occasion to consider a similar provision in the
case of Abhishek s/o. Vidya Nand Singh v/s.
Hindustan Petroleum Corporation Ltd. In the Writ
Petition (L) No. 808/2009 etc. decided on 13th
August, 2009. The condition in that case was that
the candidates who have 60% and above marks in
the qualifying examination would be eligible to
apply. The other category of candidates who were
permitted to apply were who have appeared for
their final year examination by July 2008 and
awaiting their results. In so far as the latter category
of candidates, it was further provided that on the
date of application, the candidate must have
secured minimum 60% marks in aggregate till the
last semester for being considered eligible to apply.
There is similarity in the sweep of the two
provisions. Notably, in that case the Corporation
took a plea which is now being pursued by the
Petitioner herein. The Corporation had argued that
for considering the eligibility and reckoning the
marks secured by the candidate at the qualifying
examination, the aggregate of “all the semesters”
will have to be taken into account and not the
marks secured by the candidate at the “final year” of
the degree course. This contention has been
negatived on two counts. Firstly, that the stipulation
in the brochure did not permit such interpretation
and Secondly because once a degree is issued by the
University in terms of the Statute, Ordinance, Rules
and Regulations of the University, then it is not open
for the employer to impose any other limitation
which would frustrate the statutory force of that
degree, unless there was unambiguous and clear
stipulation in the advertisement inviting
applications for employment of candidates who not
only have the degree but their entire course
percentage of marks is above 60% which will be
counted for determining the percentage of marks
specified in that advertisement. The Court went on
to observe that the expression “qualifying
examination” is within the power, ambit and
jurisdiction of the University and that is what should
be treated as final examination of the degree course.
Besides, what should be treated as the qualifying
examination is to be ascertained and defined by
none other than the University itself. We had
occasion to examine the Ordinance and
Regulations of Mumbai University and on conjoint
reading thereof, we have held that the Scheme of
the Statute of Mumbai University clearly shows that
it is the marks obtained in the Seventh and Eighth
Semesters which are determinative of issuance of
degree of Bachelor of Engineering in all the Core
Disciplines; and, therefore, 60% marks referred to in
the Brochure in terms of advertisement ought to
relate to the “final examination” of the degree
course in respect of candidates who have passed the
qualifying examination. The position expounded in
the said decision would answer the issue raised on
behalf of the Petitioner.
9. Considering the plain language of the
stipulation in the Information Brochure published
by the Respondent in the present case, the only
meaning that can be ascribed thereto is that the
candidate must have secured minimum of 60%
marks in any of the Engineering Disciplines at the
qualifying or “final degree examination.” In the
present case, the Petitioner has secured only 843
marks out of total 1425 marks at the final
examination which in terms of percentage would
work out to be less than 60%. The degree issued to
the Petitioner is on the basis of the said marks and
not on the basis of average of all the semesters of
the degree course. The Petitioner has erroneously
assumed that the average marks secured in all the
eight semesters of the degree course will have to be
taken into account for determining her qualifying
marks, which stand is not consistent with the
notification inviting applications nor with the extant
Rules and Regulations of the Mumbai University. ”
Similarly the contention advanced on behalf of
the Petitioners that age limit of 25 years for fresh law
graduates is unrealistic as the candidates who were earlier
pursuing studies in other streams like Medicine, Engineering
etc but who have thereafter opted for law are debarred in
view of the age limit of 25 years, in our view, in the teeth of
the purport and intent of the said Rules, this argument does
not commend to us. The object of the said Rule is to capture
fresh talented law graduates at the threshold having an
excellent academic record. The said Rule therefore
contemplates a candidate who has taken up a career in law at
the threshold and who also has an excellent academic record.
We, therefore do not find the said age limit of 25 years to be
It would also be
unrealistic or arbitrary in any manner.
pertinent to note that the second avenue of three years
practice with the higher age limit of 35 years is also open to
the candidates.
It was also sought to be faintly submitted by the
learned counsel for the Petitioners that the persons who have
failed in one semester but who have passed the same in the
same academic year were allowed to appear for interview.
Beyond making the said submission no factual data was
placed by the learned counsel for the Petitioners before us. It
was therefore not possible for us to examine the said
submission and the said submission therefore would have to
be rejected in the absence of any factual data.
21
The contention advanced on behalf of the
Petitioners that since the Petitioners were allowed to appear
for preliminary examination and thereafter main
examination, the Respondents ought not to have cancelled
their interviews is, in our opinion, misfounded. If a
particular candidate is not entitled to participate in the
selection process as he is not eligible for the same, the mere
fact that he/she was allowed to appear in the selection
process would not confer any right on such candidate and, in
our view, therefore the action of the Respondents in
cancelling the interview of the Petitioners was justified.
CONSIDERATION VISAAVIS CHALLENGE ON THE
GROUND OF DUE IMPORTANCE NOT BEING GIVEN TO
MARATHI LANGUAGE.
22
No doubt it is true that the State Government has
issued Notification under Section 272 of the Code of Criminal
Procedure and Section 137 of the Code of Civil Procedure
making Marathi the language of the lower Courts. In keeping
with the said policy of the State Government, the Rule in
question requires that a candidate should have adequate
knowledge of Marathi. The said Rule also provides that the
selected candidate has to pass an examination in Marathi
within six months of joining the judicial service. This can be
gathered from the Rules which have been reproduced in the
earlier part of this Judgment.
The contention of the Petitioners that considering
the present selection process the knowledge of Marathi has
been compromised, in our view, is misplaced. As can be seen
from the Rules, the said Rules prescribe that a candidate has
to obtain certificate from the Authorities mentioned in the
said Rule. The said Authorities are the responsible persons
who have had an occasion to observe the candidate at close
quarters viz. the District Judges of the concerned District
Courts, Principals of the Colleges, Heads of the Departments
etc. It would therefore have to be presumed that the said
power of issuing certificate would be exercised by the said
authorities with due caution and care, keeping in mind the
post to which the candidate is seeking appointment viz. that
of the CJJD and JMFC. We, also for the aforesaid reason, do
not find any merit in the contention of the Petitioners that in
the absence of any guidelines or criteria which the authorities
have to adopt for issuing the said certificate, the said
certificate would be issued in an arbitrary manner and in the
As regards the contention of the Petitioners that
process the knowledge of Marathi would be compromised.
though it is prescribed that a candidate would have to pass
the examination in Marathi within six months, the
consequences of not passing the said examination are not
mentioned. In this respect it is required to be noted that the
candidates are appointed on probation and the six months
period would be within the probationary period, the
appointing authority would therefore be entitled to take an
appropriate decision in respect of a candidate who does not
pass the said examination in Marathi within the stipulated
time. In our view therefore the Petitioners apprehension is
misfounded.
The next contention advanced on behalf of the
25
Petitioners that since other States like Karnataka, Orissa, West
Bengal, have prescribed a paper in the local language,
whereby according to the Petitioners, the knowledge of the
candidate of the local language can be ascertained, and,
therefore, the State of Maharashtra should also adopt the said
methodology of ascertaining the knowledge of Marathi of the
candidate. In our view, just because in other States there is a
paper in the local language, that cannot be a basis for the
State Government to introduce a paper in Marathi for the
written examination. The State Government, in the instant
case, has thought it fit to ascertain the candidates’ knowledge
of Marathi by the method prescribed in the Rules. In our
view, the State Government is the best judge in that regard
and we therefore cannot substitute our judgment for that of
the State Government.
In any event, prescribing a paper in Marathi
would amount to us legislating meaning thereby directing the
State Government to frame rules in a particular manner. Such
directions, in our view, cannot be given by us in our extra
ordinary writ jurisdiction under Article 226 of the
In so far as facility of answering the paper in
Constitution of India.
Marathi or taking the examination in Marathi is concerned,
we find considerable merit in the submission of the
Petitioners in that regard. Since the policy of the State
Government has now been implemented by directing Marathi
to be a language of the lower Courts, this Court also having
issued directions on the administrative side for the lower
judiciary to writ judgments in Marathi. In our view, it would
be in the fitness of things if the candidates are given the
facility of taking the examination of CJJD and JMFC in
Marathi and answering the same in Marathi. We would
recommend to the Respondent No.1 to make the said facility
available to the candidates at least from the next examination
for selection of subordinate judicial officers in the State of
Maharashtra.
Since the Rules have only come into force in the
year 2008 in so far as ascertaining the knowledge of Marathi
is concerned, the requirement prescribed by the said Rules
for ascertaining the said knowledge would have to be given a
fair run so as to ascertain as to whether review is required to
be taken of the said Rules. In our view, therefore, no direction
can be issued in that behalf.
28
For all the aforesaid reasons, we do not find any
merit in the above Petitions as well as in the PIL, which are
accordingly dismissed and Rule discharged.
29
In so far as Writ Petition No.1751 of 2009 is
concerned, the same concerns appointment to the post of
Clerk and therefore requires to be delinked from the above
Petitions. It is accordingly delinked and the office is directed
to place it before the Hon’ble the Chief Justice for obtaining
appropriate directions for being sent back to the Aurangabad
Bench.
(A M KHANWILKAR, J)
ig
(R M SAVANT, J.)
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