CHAMPAKLAL M BHAVSAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) If the provision regarding relaxation in upper age limit occuring in Rule 8(5) of Gujarat Civil Services (Classification & Recruitment) General Rules, 1967 is not applicable to the case of the petitioner, then is the provision prescribing upper age limit of 45 years as an eligibility criterion for the post of Civil Judge (J.D.) and Judicial Magistrate, First Class contained in Rule 5(3A)(a) of the Gujarat Judicial Service Recruitment Rules, 1961, unconstitutional? This is the principal question to be decided in this petition.

(2.) The petitioner is serving as clerk in the establishment of High Court of Gujarat. He is M A., LL B. and thus he possessed educational qualifications for being appointed to the post of Civil Judge (J. D.) and Judicial Magistrate, First Class. Considering himself eligible for the post, he applied for the post in response to the advertisement dated 1/11/1989 which was issued by the Gujarat Public Service Commission and published in "Gnjarat Samachar" dated 4/11/1989. He appeared at the elimination test. He has succeeded in the test. He was so informed also. However later on, he was informed that since he was aged 50 years on die date of advertisement, i.e., on 1/11/1989 and since he had crossed 45 years of age, he was not eligible for being appointed to the post. On this count, he was not called for interview. Therefore, the petitioner has filed the present petition challenging the constitutional validity of Rule 5(3A) (a) of the Gujarat Judicial Service Recruitment Rules, 1961, which inter alia prescribes upper age limit of 45 years.

(3.) Gujarat Judicial Service Recruitment Rules, 1961 are framed under the provisions of Art. 234 read with Art. 309 of the Constitution of India by the Governor in consultation with the Gujarat Public Service Commission and the High Court of Gujarat. Rule 2(e) defines 'service' and it means the Gujarat Judicial Service. As provided under Rule 3, the service consists of two branches, namely, Junior Branch and Senior Branch. The Junior Brancli consist:; of Class I comprising the cadre of Civil Judges (Senior Division) and the Judges of the Courts of Small Causes and Class II comprising of Civil Judges (Junior Division) and Judicial Magistrates of the First Class. The Senior Branch of service consists of District Judges, the Principal Judge and the Judges of the Ahmedabad City Civil Court, the Chief Judge of the Small Causes Court, Ahmedabad, the Chief Metropolitan Magistrate, the Additional Chief Metropolitan Magistrate, Ahmedabad and the Assistant Judges. Rule 5 provides for method of recruitment to Class II of the Junior Branch of service. Appointments to the posts of Civil Judges (Junior Division) and Judicial Magistrate of the Firss Class are to be made by direct selection from amongst : (i) members of the Bar; (ii) members of the staff of the High Court or any Court subordinate to it; (iii) members of the staff working as Assistants in the Legal Section of the Legal Department in Sachivalaya; (iv) members of the staff of office of the Government Pleader, High Court, Ahmedabad; and (v) members of the staff of office of the Government Pleader, City Civil Court, Ahmedabad. The appointments are to be made by the Governor in consultation with the Commission and the Commission is enjoined with a duty to invite the representative of the High Court to be present at the interview that may be held by it for the purpose. Rule 5(3A) prescribes the eligibility criteria which inter alia provides that the appointments shall be made from amongst candidates who are not more than 45 years.