PETITIONER:
INDRAVADAN H. SHAH
Vs.
RESPONDENT:
STATE OF GUJARAT & ANR.
DATE OF JUDGMENT19/03/1986
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1986 AIR 1035 1986 SCR (1) 926
1986 SCC Supl. 254 1986 SCALE (1)456
ACT:
Constitution of India, 1950, Articles 14 and 16 - No
discrimination in appointment either by promotion or
directrecruitment - Necessity for.
Gujarat Judicial Service Recruitment (Amendment) Rules,
1979 - Rules 6(4)(i) and 6(4)(iii)(a) - Promotion to
Assistant Judge from category of Civil Judge Junior/Senior
Division - Imposition of age restriction - Whether ultra
vires Articles 14 and 16.
HEADNOTE:
The Gujarat Judicial Service Recruitment Rules 1961 as
amended upto 1979 lay down the mode of recruitment to and
constitution of the Gujarat Judicial Service. The Service
shall constitute of two branches, namely, (1) Junior Branch
and (2) Senior Branch. Rules 6(4)(i) and 6(4)(iii)(a)
provide that a Civil Judge (Senior Division) after
completing 48 years of age will not be eligible for
consideration for promotion to the post of Assistant Judge
and his name appearing in the select list will be struck out
therefrom on his completion of 48 years.
The appellant was found suitable for appointment by
promotion to the post of Assistant Judge and his name
appeared in the Select List prepared for the year 1982-83.
His turn did not come up and the select list lapsed on
30.4.1983. On that date as he had already completed 48
years, his name was not put on the select list for the year
1983-84.
The appellant filed a writ petition under Art.226
assailing the validity of Rules 6(4)(i) and 6(4)(iii)(a)
alleging that they were unreasonable, arbitrary,
discriminatory and violative of Arts. 14 and 16.
The High Court dismissed the petition holding that the
age restriction provided by the recruiting authorities for
927
different cadres of post is not repugnant to Article 14 of
the Constitution; that this system was in vogue for many
decades, even in the bilingual State of Bombay; that though
there was no restriction regarding age for selection from
the members of the Bar to the post of District Judge, there
was age limit for selection and appointment by promotion
from the members of Junior Branch to the post of Assistant
Judges; that members of the Bar have got free atmosphere to
work and there was enough scope for them to better develop
their mental faculty. If for an important post like that of
a District Judge, a member of the Bar is to be recruited in
order to enthuse fresh blood at that important position of
the service cadre, it can be said to be a different class
altogether; that there was no discrimination by introducing
age bar in the recruitment rules so far as the appointment
to the post of Assistant Judges by promotion is concerned
and that the class of Assistant Judges and the class of
District Judges for this purpose constitute two different
classes.
In the appeal to this Court on behalf of the appellant,
the contentions raised in the High Court were reiterated. On
behalf of the respondent-High Court, it was contended: (1)
that the age restriction for promotion to the post of
Assistant Judge was in vogue since 1924 or so even in the
erstwhile State of Bombay, though there was no age limit for
selection to the post of District Judge from the Bar; (2)
that the rationale underlying the age restriction for
recruitment to the post of Assistant Judge is that they
should have sufficient number of years left before they
reach the age of superannuation so that their services can
be utilised as District Judges; (3) that the pay scale of
Civil Judges (Senior Division) and that of the Assistant
Judges is the same; if an incumbent is taken as an Assistant
Judge at an advanced stage, he may have to retire as an
Assistant Judge and he will not have any pecuniary gain; and
(4) that a Civil Judge (Senior Division) or Civil Judge
(Junior Division) who completes 48 years of age may not be
fully equipped with the physical and mental calibre for that
higher post calling for essentially different type of
duties, namely, conducting of Sessions cases, appeals etc.
Allowing the appeal,
928
^
HELD: 1. Articles 14 and 16 of the Constitution ensure
that there should not be any discrimination in the matter of
appointment in service, nor there will be any arbitrariness
or unreasonableness in the rules of recruitment providing
for appointment to the service either by promotion or by
direct recruitment. [935 B-C]
E.P. Royappa v. State of Tamilnadu & Anr. [1974] 2
S.C.R. p. 348 at p.386, Maneka Gandhi v. Union of India
[1978] 2 S.C.R. p.621 and R.D. Shetty v. International
Airport Authority of India & Ors. [1979] 3 S.C.R. p. 1014
referred to.
2. The provisions of Rule 6(4)(i) read with Rule
6(4)(iii)(a) of the Gujarat Judicial Service Recruitment
(Amended Rules) 1979 are irrational, arbitrary and
unreasonable inasmuch as there is no nexus to the object
sought to be achieved by introducing the age restriction in
regard to appointment of Assistant Judge by promotion from
amongst members holding post of Civil Judges (Junior
Division) and those in the cadre of Civil Judges (Senior
Division) whose names have been entered in the select list.
[937 B-C]
3. The posts of Assistant Judge as well as of District
Judge are included in the Senior Branch of Gujarat Judicial
Service. It is incomprehensible how these two cadres of
Assistant Judges and District Judges can be treated as two
different classes altogether thereby justifying the
introduction of age restriction in regard to selection and
appointment by promotion to the post of Assistant Judge,
while doing away with any such sort of age limit or
restriction in respect of appointment to the post of
District Judge by promotion amongst the members of the
Junior Branch who have served as Assistant Judges. The
reasoning given by the High Court is totally unsustainable.
With the coming of age and experience, a Judicial Officer
becomes more suited and well equipped to perform and
discharge the higher duties and responsibilities attached to
the higher post of Assistant Judge or District Judge. [935
A-B; 934 E, G-H]
4. The rule regarding age restriction which was
originally introduced in the recruitment rules of Judicial
Service in bilingual State of Bombay has subsequently been
deleted in the Recruitment Rules of Maharashtra Judicial
929
Service. This archaic, unreasonable and irrational rule
which is ex facie arbitrary and discriminatory has been
allowed to continue in the Gujarat Judicial Service
Recruitment Rules 1961 as amended upto 1979. [937 D-E]
5. The provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a)
of the Gujarat Judicial Recruitment (Amended Rules) 1979 are
invalid and bad as they are unreasonable, irrational,
arbitrary and discriminatory and violate equality clause
envisaged in Articles 14 and 16 of the Constitution. These
rules in so far as they impose age restriction in the matter
of promotion to the post of Assistant Judge are liable to be
quashed and set aside. [936 G-H; 938 A-B]
6. The name of the appellant shall be deemed to have
been continued in the select list of 1983-84 and his case
for appointment to the post of Assistant Judge shall be
considered on that basis by the authorities concerned. If he
is appointed to the post of Assistant Judge, he shall get
his due seniority and all retiral benefits reckoning the
service on that basis. [938 B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2588 of
1985
From the Judgment and Order dated 17.12.84 of the
Gujarat High Court in Special Civil Application No. 2332 of
1984.
P.H. Parekh and C.B. Singh for the Appellant.
T.U. Mehta, Girish Chandra and M.N. Shroff for the
Respondents.
The Judgment of the Court was delivered by
B.C.RAY, J. This appeal raises a very short though
important question as to the validity and vires of the
provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a) of the
Gujarat Judicial Service Recruitment (Amendment Rules) 1979.
The relevant rules are quoted hereinbelow:-
930
(i)Appointment to the post of an Assistant Judge
shall be made by the Governor in consultation with
the High Court by promotion of a person from
amongst such persons comprising of those holding
the posts of Civil Judges (Junior Division) and
those in the cadre of Civil Judges (Senior
Division) whose names have been entered in the
Select List referred to in Clause (ii) before they
have reached the age of 48 years and continue in
that list on the date of appointment;
Provided that no person shall be eligible for such
appointment unless he has :-
(a) served for a period of not less than seven
years as a Civil Judge (Junior Division) ; or
worked on Civil side for a period of not less than
three years if he belongs to the cadre of Civil
Judge (Senior Division).
(ii) A Select List of members who are considered
fit for appointment by promotion to posts of
Assistant Judges shall be prepared annually by
Government in consultation with the High Court.
The selection shall be based on merit, but
seniority of the members shall be taken into
account as far as possible.
(iii) (a) The name of a candidate entered in the
Select List shall be struck out of it on his
reaching the age of 49 years if during the
interval, he is not appointed as an Assistant
Judge.
The appellant was born on 6.4.1934 and in accordance
with the provisions of Gujarat Judicial Service Recruitment
Rules 1961 as amended in 1964 to 1969, the appellant being
in the cadre of Civil Judge (Senior Division) was considered
for selection for inclusion in the select list to be
considered for appointment by promotion to the post of
Assistant Judge in the year 1980-81 and 1981-82, but he was
not found suitable. He was, however, found suitable and his
name appeared in the
931
Selection List prepared for the year 1982-83. His turn did
not come up and the Select List lapsed with the expiry of
30.4.1983. On that date as he had already completed 48
years, his name was not put on the Select List for the
following year, namely 1983-84. It is against this non-
appearance of his name in the Select List of 1983-84, the
appellant assailed the validity of the aforesaid provisions
of rules 6(4)(i) and 6(4)(iii)(a) of the Gujarat Judicial
Service Recruitment Rules, 1961 as amended upto 1979 on the
ground that it was unreasonable, arbitrary, discriminatory
and violative of Articles 14 and 16 of the Constitution of
India by a Writ Petition in the High Court of Gujarat being
Civil Application No. 2332 of 1984, whereon a rule was
issued on December 17, 1984. The said rule after notice to
the parties was discharged and it was held that the impugned
rules were not arbitrary, unreasonable or irrationale and
they are not also discriminatory.
The Governor of Gujarat framed the Gujarat Judicial
Service Recruitment Rules 1961 under proviso to Article 309
of the Constitution of India read with Article 234 of the
Constitution laying down the mode of recruitment to the
Gujarat Judicial Service. These rules as amended upto 1979
provide that the Gujarat Judicial Service shall consist of
two branches namely (i) Junior Branch and (ii) Senior
Branch. The junior branch shall consist of two classes, i.e.
(a) Class I comprising the cadre of Civil Judges (Senior
Division) (b) the Judges of the Courts of Small causes and
(c) Class II comprising Civil Judges (Junior Division) and
Judicial Magistrate of First Class. In accordance with the
amended recruitment rules 1979 the cadre of Civil Judge
(Senior Division) shall consist of :-
(a) all Judicial Officers holding on the said
date, the post of :-
(i) Civil Judge (Senior Division)
(ii) Chief Judicial Magistrate, and
(iii) Metropolitan Magistrate
(b) Officers recruited to the said cadre under sub
rule (i) of Rule 4.
932
The Senior Branch shall consist of District Judges
Principal Judge and Judges of Ahmedabad City Civil Court,
the Chief Metropolitan Magistrate, the Chief Judge of Small
Causes Court, Ahmedabad, the Additional Chief Metropolitan
Magistrate, Ahmedabad and the Assistant Judges. Rules
6(4)(i) and 6(4)(iii)(a) clearly provide that a Civil Judge
(Senior Division) after completing 48 years of age will not
be eligible for consideration for promotion to the post of
Assistant Judge and his name appearing in select list will
be struck out from the select list on his completion of 48
years i.e. on reaching 49 years of age.
The only question for consideration is whether the
provisions of aforesaid rules 6(4)(i) and 6(4)(iii)(a) of
the Gujarat Judicial Service Recruitment Rules 1961 as
amended upto 1979 are invalid being arbitrary, irrationale,
unreasonable and in contravention of the equality clause
envisaged in Articles 14 and 16 of the Constitution of
India. To decide properly this question, it is relevant to
consider in this connection rule 6(2)(i), which provides for
appointment to the post of District Judge. The relevant
excerpt of the said rule is quoted hereinbelow :-
The appointment to the post of a District Judge
shall be made by the Governor :-
(a) in consultation with the High Court from
amongst the members of the Junior Branch who have
ordinarily served as Assistant Judges; or
(b) on the recommendation of the High Court from
amongst members of the Bar who have practised as
Advocates or Pleaders for not less than seven
years in the High Court or Court subordinate
thereto :-
Provided that a person recruited at the age of not
more than 45 years (except in the case of a person
belonging to a community recognised as Backward by
Government for the purpose of recruitment in whose
case at the age of not more than 48 years) shall
before he is appointed as a District Judge, be
appointed in the first instance to be an Assistant
Judge for such period as may, on the
recommendation
933
of the High Court, be decided by Government on the
merits of his case.
It appears that regarding appointment to the posts of
District Judges by promotion from amongst members of the
Junior Branch who have ordinarily served as an Assistant
Judge, there is no limit or bar of age unlike that of the
appointment of an Assistant Judge by promotion from the
members of Civil Judges (Senior Division) or from members of
Civil Judges (Junior Division). It is only in the case of
direct recruitment from amongst the members of the Bar to
the post of District Judges there is an age limit of 45
years which is relaxed to 48 years in the case of
recruitment of persons belonging to the community recognised
as backward by the Government. It was tried to be justified
on behalf of the respondents particularly by the High Court
of Gujarat by filing Counter that this age restriction for
promotion to the post of Assistant Judge was in vogue since
1924 or so even in the erst-while State of Bombay, though
there was no age limit for selection to the post of District
Judge from the Bar. It has been further stated that the
rationale under lying the age restriction for recruitment to
the post of Assistant Judge is that such Assistant Judges
should have sufficient number of years left before they
reach the age of superannuation, so that their service can
be utilized as District Judges. There would be no point in
selecting them as Assistant Judges if they have to retire
only as Assistant Judges. It has been further stated therein
that the present pay scale of Civil Judges (Senior Division)
is Rs.1300-1700 p.m. and the same is the scale for the post
of an Assistant Judge. So if an incumbent is taken as an
Assistant Judge at an advanced stage he may have to retire
only as an Assistant Judge with the result that he will not
have any pecuniary gain by being promoted as an Assistant
Judge from the post of Civil Judge (Senior Division). It has
been further stated that the law making authority might have
considered that a Civil Judge (Senior Division) or Civil
Judge (Junior Division) who completes 48 years of age may
not be fully equipped with the physical and mental calibre
for that higher post calling for essentially different type
of duties, namely conducting Sessions cases, appeals, etc.
The High Court duly considered this aspect of the case and
thereafter the rules in question were framed. No rejoinder
has, however, been filed on behalf of the State.
934
Similar contentions were made before us by the learned
counsel who appeared on behalf of the High Court to support
the rationale behind the laying down of the age bar for the
purpose of promotion to the post of Assistant Judge in case
of persons already in service.
The Division Bench of the Gujarat High Court held that
this system was in vogue for many decades, even in the
bilingual State of Bombay. Though there was no restriction
regarding age for selection from the members of the Bar to
the post of District Judge, there was age limit for
selection and appointment by promotion from the members of
Junior Branch to the posts of Assistant Judges. This age
restriction provided by the recruiting authorities for
different cadres of posts is not repugnant to Article 14 of
the Constitution. It was also observed that members of the
Bar have got free atmosphere to work and there was enough
scope for them to better develop their mental faculty. If in
the interest of an important post like that of a District
Judge, a member of the Bar is to be recruited in order to
enthuse fresh blood at that important position of the
service cadre, it can be said to be a different class
altogether. As such there was no discrimination by
introducing age bar in the recruitment rules so far as
appointment to the post of Assistant Judges by promotion is
concerned. The class of Assistant Judges and the Class of
District Judges for this purpose constitute two different
classes.
This reasoning given by the High Court is totally
unsustainable for the simple reason that if a person holding
the post of Civil Judge (Senior Division) who has completed
48 years of age is considered to be not fully equipped with
the physical and mental calibre for being appointed to the
higher post of Assistant Judge, then on the same analogy how
a member of the Bar will be considered at the age of 48
years to be most suitable for being appointed to the higher
and responsible post of District Judge and such appointees
will infuse fresh blood at the important service. On the
other hand it is well established that with the coming of
age and experience, a Judicial Officer becomes more suited
and well equipped to perform and discharge the higher duties
and responsibilities attached to the higher posts of
Assistant Judge and that of District Judge.
935
The posts of Assistant Judge as well as of District
Judge are included in Senior Branch of Gujarat Judicial
Service. It is incomprehensible how these two cadres of
Assistant Judges and District Judges can be treated as two
different classes altogether, thereby justifying the
introduction of age restriction in regard to selection and
appointment by promotion to the post of Assistant Judge
while doing away with any such sort of age limit or
restriction in respect of appointment to the post of a
District Judge by promotion from amongst the members of the
Junior Branch who have served as Assistant Judges. Articles
14 and 16 of the Constitution ensure that there should not
be any discrimination in the matter of appointment in
service, nor there will be any arbitrariness or
unreasonableness in the rules of recruitment providing for
appointment to the service either by promotion or by direct
recruitment. There is no nexus to the object sought to be
achieved by introducing the age restriction as regards the
promotion by appointment to the post of Assistant Judge from
amongst the members of the Gujarat Judicial Service (Junior
Branch), as provided in Rules 6(4)(i) and 6(4)(iii)(a) of
the said rules. But in respect of appointment to the higher
post of a District Judge by promotion from amongst the
members of the Junior Branch who have served as Assistant
Judges, no such restriction of age has been provided in Rule
6(2)(i)(a) and (b) of the said rules. There is obviously no
rationale, nor any reasonableness for introduction of this
age bar in regard to appointment by promotion to the post of
an Assistant Judge. The rule, is, therefore, arbitrary and
it violates the salutory principles of equality and want of
arbitrariness in the matter of public employment as
guaranteed by Articles 14 and 16 of the Constitution. It is
pertinent to refer in this connection to the observations of
this Court in the case of E.P. Royappa v. State of Tamilnadu
& Anr. [1974] 2 S.C.R. p. 348 at p. 386 which are in the
following terms :-
“Though enacted as a distinct and independent
fundamental right because of its great importance
as a principle ensuring equality of opportunity in
public employment which is so vital to the
building up of the new classless egalitarian
society envisaged in the Constitution, Art. 16 is
only an instance of the application of the concept
of equality enshrined in Art.14. In other words,
Art.
936
14 is the genus while Art. 16 is a species, Art.
16 gives effect to the doctrine of equality in all
matters relating to public employment. The basic
principle which, therefore, informs both Arts. 14
and 16 is equality and inhibition against
discrimination……..
Equality is a dynamic concept with many aspects
and dimensions and it cannot be “cribbed, cabined
and confined” within traditional and doctrinaire
limits. From a positivistic point of view,
equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary it is implicit
in it that it is unequal both according to
political logic and constitutional law.”
Similar observations have been made in the case of
Maneka Gandhi v. Union of India [1978] 2 S.C.R. p. 621. It
has been observed that :-
“Article 14 strikes at arbitrariness in State
action and ensures fairness and equality of
treatment. The principle of reasonableness, which
legally as well as philosophically, is an
essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence.”
The reach and ambit of Article 14 has been very
succinctly reiterated again by this Court in the case of
R.D. Shetty v. International Airport Authority of India &
Ors. [1979] 3 S.C.R. p. 1014 as follows :-
“It is now well settled that Article 14 strikes at
arbitrariness in State action and ensures fairness
and equality of treatment. It requires that State
action must not be arbitrary but must be based on
some rational relevant principle which is non-
discriminatory; it must not be guided by any
extraneous or irrelevant considerations, because
that would be denial of equality. The principle of
937
reasonableness and rationality which is legally as
well as philosophically an essential element of
equality or non-arbitrariness is protected by
Article 14 and it must characterise every State
action whether it be under authority of law or in
exercise of executive power without making of
law.”
We have already stated hereinbefore that the provisions
of rules 6(4)(i) read with 6(4)(iii)(a) are irrational,
arbitrary and unreasonable inasmuch as there is no nexus to
the object sought to be achieved by introducing the age
restriction in regard to appointment of Assistant Judge by
promotion from amongst members holding posts of Civil Judges
(Junior Division) and those in the cadre of Civil Judges
(Senior Division) whose names have been entered in the
select list. We have also held that though the post of
Assistant Judge as well as the post of District Judge belong
to the Senior Branch of Gujarat Judicial Service, yet in the
higher cadre of District Judge no such age bar has been
introduced. Moreover, as has been stated by the learned
counsel appearing on behalf of the High Court of Gujarat
that this rule regarding age restriction which was
originally introduced in the recruitment rules of Judicial
Services in the bilingual State of Bombay has subsequently
been deleted and discontinued in the relevant Recruitment
Rules of Maharashtra Judicial Service, it is curious that
this archaic, unreasonable and irrational rule which is ex-
facie arbitrary and discriminatory has been allowed to
continue in the Gujarat Judicial Service Recruitment Rules
1961 as amended upto 1979.
We wish to make it clear that our observations made
hereinbefore should not be construed to mean that there
cannot be any fixation of age of superannuation in different
grades of other services namely armed forces, air force and
naval force. In such services the fixation of different age
of superannuation in different grades may be made in public
interest in order to ensure excellence in service as well as
merit and efficiency which to a great extent depend on
physical fitness apart from merit.
In the premises aforesaid, the provisions of rule
6(4)(i) and rule 6(4)(iii)(a) of the Gujarat Judicial
Service Recruitment (amended rules), 1979 is invalid and bad
as it is
938
unreasonable, irrationale, arbitrary and discriminatory, and
violating the equality clause envisaged in Articles 14 and
16 of the Constitution of India.
These rules in so far as they impose age restriction in
the matter of promotion to the post of Assistant Judge are
liable to be quashed and set aside and the judgment of the
High Court of Gujarat is also set aside. We direct that the
name of this appellant shall be deemed to have been
continued in the select list of 1983-84 and his case for
appointment to the post of Assistant Judge shall be
considered on that basis by the authorities concerned. If he
is so appointed to the post of Assistant Judge, he shall get
his due seniority and all retiral benefits reckoning his
service on that basis. The appeal is accordingly allowed.
There will be no order as to costs.
A.P.J. Appeal allowed.
939