Gujarat High Court Dismisses Rajasthan Civil Judge's Appeal Seeking Permission To Participate In Its Recruitment Of Civil Judges

The Gujarat High Court has rejected a plea filed by a serving Civil Judge from Rajasthan for permission to participate in the recruitment for the post of Civil Judge in Gujarat.

The division bench of Justices AS Supehia and Divyesh A Joshi held:

"The expression “other allied department” used in Sub- clause(b) of sub-rule (2) of Rule 7 of the Rules has further been clarified by the High Court and the aforesaid four categories have been included to facilitate the recruitment process. Merely because, respondent No.1 has issued instructions clarifying the categories of employees working in the “allied department” will not create class within class. The further clarificatory instructions are not in any manner infringing the statutory Rules, and cannot be set aside. The appellant, who is serving as a Civil Judge, unquestionably will not fall in any of the aforementioned categories, as she cannot call herself as an employee of a Court."

Background

The Gujarat High Court had advertised 219 posts of Civil Judge on February 1, 2022. A serving Civil Judge from Rajasthan applied for the position, but her online application was not accepted. She sought permission from the Rajasthan High Court to apply for the same position advertised by the Gujarat High Court, which was granted.

However, her detailed representation to the Gujarat High Court requesting consideration for appointment to the position and permission to fill the application form by physical mode was not entertained. Meanwhile, she received permission from the Rajasthan High Court.

The preliminary examination was scheduled as per the advertisement, post which the aggrieved appellant filed a writ petition asking for consideration for the position and to declare the instructions in Item No.10(7) invalid, which excluded the candidature of candidates working in courts not subordinate to the Gujarat High Court for the Civil Judge position.

The Single Judge dismissed the writ petition, prompting the appellant to file a Letters Patent Appeal.

Verdict

While observing the only issue before the court for consideration is whether the appellant, who was serving as a Civil Judge in the State of Rajasthan can be allowed to participate in the process of recruitment for appointment of Civil Judges in the State of Gujarat, the bench said, “For appreciating the controversy and issue raised in the present Appeal, it would be apposite to incorporate the provisions of Rule 7 of the Gujarat State Judicial Services Rules, 2005. The aforesaid rules are framed under the proviso to Article 309 read with Article 234 of the Constitution of India.”

After a combined reading of Article 236 of the Constitution of India, and Section 2 of the Gujarat Civil Courts Act, 2005, the bench noted that there are three classes of Civil Courts, Court of District Judge, Court of Senior Civil Judge and Court of a Civil Judge and each Court of Civil Judge is “presided over by a Judge”, and after a person is appointed as a Civil Judge, he/she discharges the function of a Judge.

The bench further noted that thus, a person who is appointed as a Civil Judge presides over the Court and discharges his function as a Civil Judge of the concerned Court which he presides over.

“It would be absolutely illogical to contend that the expression “must be working in the Courts” as incorporated in Clause (b) of Rule 7 of sub-Rule (2) of the Gujarat Judicial Service Rules, 2005 would mean and include a person who is appointed as a Civil Judge, and who presides and discharges his function of the Court. The submissions of the appellant if is accepted, would defeat the very purport and intention of the Rules, for which, the appointment of Civil Judge is to be made under such Rules. Thus, the expression “must be working in the Courts” incorporated in Clause (b) of sub-rule (2) of Rule 7 of the Rules, cannot be in any manner envisages or encompasses a post of Civil Judge,” said the court.

It added, "A Civil Judge presides over the Court and discharges his functions and exercise his powers of Civil Judge and he cannot equate himself to be “having worked or working in the Courts” as per the expression used in Rule 7 of sub-Rule (2) of Clause (b) and hence, such submission being devoid of merits, is liable to be rejected. By applying the doctrine of noscitur a sociis, the word “candidate” used in sub-rule(2) of Rule 7 has to be read in conjunction with the expression “working in the Courts”. Thus, the intention of the framers of the Rule was to invite candidates who are working in Courts and not the Civil Judges who preside in the Court or discharge judicial function.”

While emphasising on the proposition of law that clarificatory instruction can be issued by the recruiting authority which aids the recruitment process and is not contrary to the Rules, the bench agreed that high court, being the recruiting authority, has all the powers to issue further instructions to iron out any ambiguity in the recruitment process.

The bench said it is a well settled proposition of the law that the fixation of the eligibility of criteria is well within the domain of the employer and no candidate can seek, as a matter or right, to provide relaxation.

While dismissing the Letters Patent Appeal, the court said “In the present case, the appellant is seeking an insertion of her candidature being a Civil Judge in the rules as mentioned above. The scheme of the Rules will imply that neither the Rule making authority or the recruiting Institute intend to fill up the post of Civil Judge by a candidate, who is already appointed as a Civil Judge.”

Case Title: Nirmal Jagmohan Sharma vs High Court Of Gujarat [R/Letters Patent Appeal No. 1254 of 2022]

Case Citation: 2023 Livelaw (Guj) 79

Appearance:Mr Vaibhav A Vyas (2896) for the Appellant(s) No. 1Law Officer Branch (420) for the Respondent(s) No. 1

Ms Trusha K Patel (2434) for the Respondent(s) No. 1