INDRAVADAN H SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a petition by a fairly senior Judicial Officer in the Judicial service of this State complaining of his having been allegedly struck off from the select list prepared with effect from 1.5.1983 for the purpose of promotion to the post of Assistant Judges. The prayers in the petition are reproduced below:

(2.) In order to understand the controversy and the points of law canvassed before us a few facts require to be closely noted. The petitioners birth date is 6.4.1935. As per the Recruitment Rules for promotion to the post of the Assistant Judge there are Gujarat Judicial Service Recruitment Rules 1961 as amended in 1974 and 1979. The petitioner was considered for that selection in the years 1980-81 and 1981-82 but was not found suitable. However in the select list prepared for the year 1982-83 he was put on the list but to his ill-luck his turn did not come up and the select list lapsed with the expiry of 30-4-1983. By that date he had already completed 48 years of his life and so he was not put on the select list for the following year viz. 1983-84 He however thought that because of the consistent practice to keep a mans name in the select list for three years if he was once selected his name was deleted on his completing 49 years of age and that is how he had come to this court. The affidavit-in-reply filed on behalf of the Administrative side of the Gujarat High Court however has made it clear that in the new list that was prepared with its operation commencing on 1.5.1983 he was not at all put on the list because of his having completed 48 years of age by that date. The arguments were advanced by Mr. N. J Mehta on this admitted fact

(3.) It is to he noted that every year a select list is prepared and the year for the purpose of this select list is stated to be commencing on 1st May of that year and ending on 30th April of the succeeding year. It is also again not in controversy that the High Court has been conducting written and oral tells for the purpose of selecting a candidate for the promotional post of an Assistant Judge and that other things being equal if a Judicial Officer is selected he is not subjected to the tests again for the further period of two years. In other words his name is being automatically incorporated in the new list to be prepared on the assumption that his merits which gave rise to his selection once continue to hold the field for the period of three years. This is also no longer in controversy. The petitioners grievance before us however is that under Rule 8(5) of the Gujarat Civil Services Classification and Recruitment (General) Rules 1967 as per the amendment of the year 1970 no question of age bar will be applicable to him who was already in the Government service and that the said amended Rule 8(5) of the aforesaid Rules containing a non-abstante clause overrides the Gujarat Judicial Service Recruitment Rules 1961 as amended under which the tests are held and selection lists are prepared year after year. It was secondly urged that the Rules under Article 309 of the Constitution of India prescribing conditions and criteria for promotion to District Judge are made by the Governor in exercise of legislative power and there the High Court has no say in the matter as far as the formulation of the Rules is concerned and if the very Governor then makes the abovementioned 1967 General Rules overriding the special Rules of recruitment the High Court cannot have any say in the matter. It was also urged before us that there was no conceivable rationale behind laying down any age bar for the purpose of promotion to the post of an Assistant Judge in the case of a person already in service in particular when for direct recruitment to the post of a District Judge there is no age limit whatsoever provided for. These are the broad arguments that were advanced before us but another argument was vigorously put forward before us on the ground that the Rules of 1961 (as amended) were wrongly interpreted by this High Court on its Administrative side and he was entitled to be continued on the list and could not have denied his placement on 1.5.83 on the ground that he had completed 48 years of age and that he was entitled to continue them up to the completion of 49 years at any rate. We propose to examine the last argument first.