{"id":236987,"date":"1986-03-19T00:00:00","date_gmt":"1986-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indravadan-h-shah-vs-state-of-gujarat-anr-on-19-march-1986"},"modified":"2016-01-10T15:07:14","modified_gmt":"2016-01-10T09:37:14","slug":"indravadan-h-shah-vs-state-of-gujarat-anr-on-19-march-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indravadan-h-shah-vs-state-of-gujarat-anr-on-19-march-1986","title":{"rendered":"Indravadan H. Shah vs State Of Gujarat & Anr on 19 March, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Indravadan H. Shah vs State Of Gujarat & Anr on 19 March, 1986<\/div>\n
Equivalent citations: 1986 AIR 1035, \t\t 1986 SCR (1) 926<\/div>\n
Author: B Ray<\/div>\n
Bench: Ray, B.C. (J)<\/div>\n
           PETITIONER:\nINDRAVADAN H. SHAH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT & ANR.\n\nDATE OF JUDGMENT19\/03\/1986\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nSEN, A.P. (J)\nVENKATARAMIAH, E.S. (J)\n\nCITATION:\n 1986 AIR 1035\t\t  1986 SCR  (1) 926\n 1986 SCC  Supl.  254\t  1986 SCALE  (1)456\n\n\nACT:\n     Constitution of  India, 1950,  Articles 14\t and 16 - No\ndiscrimination\tin   appointment  either   by  promotion  or\ndirectrecruitment - Necessity for.\n     Gujarat Judicial Service Recruitment (Amendment) Rules,\n1979  -\t Rules\t6(4)(i)\t and  6(4)(iii)(a)  -  Promotion  to\nAssistant Judge\t from category\tof Civil Judge Junior\/Senior\nDivision -  Imposition of  age restriction  - Whether  ultra\nvires Articles 14 and 16.\n\n\n\nHEADNOTE:\n     The Gujarat  Judicial Service Recruitment Rules 1961 as\namended upto  1979 lay\tdown the  mode of recruitment to and\nconstitution of\t the Gujarat  Judicial Service.\t The Service\nshall constitute  of two branches, namely, (1) Junior Branch\nand  (2)  Senior  Branch.  Rules  6(4)(i)  and\t6(4)(iii)(a)\nprovide\t that\ta  Civil   Judge  (Senior   Division)  after\ncompleting  48\tyears  of  age\twill  not  be  eligible\t for\nconsideration for  promotion to\t the post of Assistant Judge\nand his name appearing in the select list will be struck out\ntherefrom on his completion of 48 years.\n     The appellant  was found  suitable for  appointment  by\npromotion to  the post\tof  Assistant  Judge  and  his\tname\nappeared in  the Select\t List prepared for the year 1982-83.\nHis turn  did not  come up  and the  select list  lapsed  on\n30.4.1983. On  that date  as he\t had  already  completed  48\nyears, his  name was not put on the select list for the year\n1983-84.\n     The appellant  filed  a  writ  petition  under  Art.226\nassailing the  validity of  Rules 6(4)(i)  and\t6(4)(iii)(a)\nalleging   that\t   they\t  were\t  unreasonable,\t  arbitrary,\ndiscriminatory and violative of Arts. 14 and 16.\n     The High  Court dismissed the petition holding that the\nage restriction provided by the recruiting authorities for\n927\ndifferent cadres  of post  is not repugnant to Article 14 of\nthe Constitution;  that this  system was  in vogue  for many\ndecades, even  in the bilingual State of Bombay; that though\nthere was  no restriction  regarding age  for selection from\nthe members  of the Bar to the post of District Judge, there\nwas age\t limit for  selection and  appointment by  promotion\nfrom the  members of  Junior Branch to the post of Assistant\nJudges; that  members of the Bar have got free atmosphere to\nwork and  there was  enough scope for them to better develop\ntheir mental  faculty. If for an important post like that of\na District  Judge, a member of the Bar is to be recruited in\norder to  enthuse fresh\t blood at that important position of\nthe service  cadre, it\tcan be\tsaid to be a different class\naltogether; that  there was no discrimination by introducing\nage bar\t in the\t recruitment rules so far as the appointment\nto the\tpost of\t Assistant Judges  by promotion is concerned\nand that  the class  of Assistant  Judges and  the class  of\nDistrict Judges\t for this  purpose constitute  two different\nclasses.\n     In the appeal to this Court on behalf of the appellant,\nthe contentions raised in the High Court were reiterated. On\nbehalf of  the respondent-High\tCourt, it was contended: (1)\nthat the  age restriction  for\tpromotion  to  the  post  of\nAssistant Judge\t was in\t vogue since  1924 or so even in the\nerstwhile State of Bombay, though there was no age limit for\nselection to  the post\tof District  Judge from the Bar; (2)\nthat  the  rationale  underlying  the  age  restriction\t for\nrecruitment to\tthe post  of Assistant\tJudge is  that\tthey\nshould have  sufficient number\tof years  left\tbefore\tthey\nreach the  age of  superannuation so that their services can\nbe utilised  as District  Judges; (3)  that the pay scale of\nCivil Judges  (Senior Division)\t and that  of the  Assistant\nJudges is the same; if an incumbent is taken as an Assistant\nJudge at  an advanced  stage, he  may have  to retire  as an\nAssistant Judge and he will not have any pecuniary gain; and\n(4) that  a Civil  Judge (Senior  Division) or\tCivil  Judge\n(Junior Division)  who completes  48 years of age may not be\nfully equipped with the physical and mental calibre for that\nhigher\tpost  calling  for  essentially\t different  type  of\nduties, namely, conducting of Sessions cases, appeals etc.\n     Allowing the appeal,\n928\n^\n     HELD: 1.  Articles 14 and 16 of the Constitution ensure\nthat there should not be any discrimination in the matter of\nappointment in\tservice, nor there will be any arbitrariness\nor unreasonableness  in the  rules of  recruitment providing\nfor appointment\t to the\t service either\t by promotion  or by\ndirect recruitment. [935 B-C]\n     E.P. Royappa  v. State  of Tamilnadu  & Anr.  [1974]  2\nS.C.R. p.  348 at  p.386, Maneka  Gandhi v.  Union of  India<\/a>\n[1978] 2  S.C.R. p.621\tand  R.D.  Shetty  v.  International\nAirport Authority  of India  & Ors.<\/a>  [1979] 3 S.C.R. p. 1014\nreferred to.\n     2. The  provisions\t of  Rule  6(4)(i)  read  with\tRule\n6(4)(iii)(a) of\t the Gujarat  Judicial\tService\t Recruitment\n(Amended  Rules)   1979\t are   irrational,   arbitrary\t and\nunreasonable inasmuch  as there\t is no\tnexus to  the object\nsought to  be achieved by introducing the age restriction in\nregard to  appointment of  Assistant Judge by promotion from\namongst\t members   holding  post  of  Civil  Judges  (Junior\nDivision) and  those in\t the cadre  of Civil  Judges (Senior\nDivision) whose\t names have been entered in the select list.\n[937 B-C]\n     3. The  posts of Assistant Judge as well as of District\nJudge are  included in the Senior Branch of Gujarat Judicial\nService. It  is incomprehensible  how these  two  cadres  of\nAssistant Judges  and District\tJudges can be treated as two\ndifferent  classes   altogether\t  thereby   justifying\t the\nintroduction of\t age restriction  in regard to selection and\nappointment by\tpromotion to  the post\tof Assistant  Judge,\nwhile doing  away  with\t any  such  sort  of  age  limit  or\nrestriction  in\t respect  of  appointment  to  the  post  of\nDistrict Judge\tby promotion  amongst  the  members  of\t the\nJunior Branch  who have\t served\t as  Assistant\tJudges.\t The\nreasoning given\t by the High Court is totally unsustainable.\nWith the  coming of  age and  experience, a Judicial Officer\nbecomes\t more  suited  and  well  equipped  to\tperform\t and\ndischarge the higher duties and responsibilities attached to\nthe higher  post of  Assistant Judge or District Judge. [935\nA-B; 934 E, G-H]\n     4.\t The   rule  regarding\tage  restriction  which\t was\noriginally introduced  in the  recruitment rules of Judicial\nService in  bilingual State  of Bombay has subsequently been\ndeleted in the Recruitment Rules of Maharashtra Judicial\n929\nService. This  archaic,\t unreasonable  and  irrational\trule\nwhich is  ex facie  arbitrary and  discriminatory  has\tbeen\nallowed\t to   continue\tin   the  Gujarat  Judicial  Service\nRecruitment Rules 1961 as amended upto 1979. [937 D-E]\n     5. The provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a)\nof the Gujarat Judicial Recruitment (Amended Rules) 1979 are\ninvalid\t and  bad  as  they  are  unreasonable,\t irrational,\narbitrary and  discriminatory and  violate  equality  clause\nenvisaged in  Articles 14  and 16 of the Constitution. These\nrules in so far as they impose age restriction in the matter\nof promotion to the post of Assistant Judge are liable to be\nquashed and set aside. [936 G-H; 938 A-B]\n     6. The  name of  the appellant  shall be deemed to have\nbeen continued\tin the\tselect list  of 1983-84 and his case\nfor appointment\t to the\t post of  Assistant Judge  shall  be\nconsidered on that basis by the authorities concerned. If he\nis appointed  to the  post of  Assistant Judge, he shall get\nhis due\t seniority and\tall retiral  benefits reckoning\t the\nservice on that basis. [938 B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2588 of
\n1985<\/span>
\n     From the  Judgment and  Order  dated  17.12.84  of\t the
\nGujarat High  Court in Special Civil Application No. 2332 of
\n1984.\n<\/p>\n
     P.H. Parekh and C.B. Singh for the Appellant.
\n     T.U. Mehta,  Girish Chandra  and M.N.  Shroff  for\t the
\nRespondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     B.C.RAY, J.  This appeal  raises a\t very  short  though
\nimportant question  as to  the validity\t and  vires  of\t the
\nprovisions of  Rule 6(4)(i)  and Rule  6(4)(iii)(a)  of\t the
\nGujarat Judicial Service Recruitment (Amendment Rules) 1979.
\nThe relevant rules are quoted hereinbelow:-\n<\/p>\n
930<\/span><\/p>\n
\t  (i)Appointment to  the post  of an Assistant Judge
\n\t  shall be made by the Governor in consultation with
\n\t  the High  Court by  promotion\t of  a\tperson\tfrom
\n\t  amongst such\tpersons comprising  of those holding
\n\t  the posts  of Civil  Judges (Junior  Division) and
\n\t  those\t in   the  cadre  of  Civil  Judges  (Senior
\n\t  Division) whose  names have  been entered  in\t the
\n\t  Select List referred to in Clause (ii) before they
\n\t  have reached\tthe age\t of 48 years and continue in
\n\t  that list on the date of appointment;
\n\t  Provided that no person shall be eligible for such
\n\t  appointment unless he has :-\n<\/p><\/blockquote>\n
\t  (a) served  for a  period of\tnot less  than seven
\n\t  years as a Civil Judge (Junior Division) ; or
\n\t  worked on Civil side for a period of not less than
\n\t  three years  if he  belongs to  the cadre of Civil
\n\t  Judge (Senior Division).\n<\/p><\/blockquote>\n
\t  (ii) A  Select List  of members who are considered
\n\t  fit for  appointment\tby  promotion  to  posts  of
\n\t  Assistant Judges  shall be  prepared\tannually  by
\n\t  Government in\t consultation with  the High  Court.
\n\t  The  selection   shall  be  based  on\t merit,\t but
\n\t  seniority of\tthe  members  shall  be\t taken\tinto
\n\t  account as far as possible.\n<\/p><\/blockquote>\n
\t  (iii) (a)  The name  of a candidate entered in the
\n\t  Select List  shall be\t struck out  of\t it  on\t his
\n\t  reaching  the\t age  of  49  years  if\t during\t the
\n\t  interval, he\tis not\tappointed  as  an  Assistant
\n\t  Judge.<\/p><\/blockquote>\n
     The appellant  was born  on 6.4.1934  and in accordance
\nwith the  provisions of Gujarat Judicial Service Recruitment
\nRules 1961  as amended\tin 1964 to 1969, the appellant being
\nin the cadre of Civil Judge (Senior Division) was considered
\nfor selection  for  inclusion  in  the\tselect\tlist  to  be
\nconsidered for\tappointment by\tpromotion  to  the  post  of
\nAssistant Judge\t in the year 1980-81 and 1981-82, but he was
\nnot found  suitable. He was, however, found suitable and his
\nname appeared in the
\n931<\/span>
\nSelection List\tprepared for  the year 1982-83. His turn did
\nnot come  up and  the Select  List lapsed with the expiry of
\n30.4.1983. On  that date  as he\t had  already  completed  48
\nyears, his  name was  not put  on the  Select List  for\t the
\nfollowing year,\t namely 1983-84.  It is\t against  this\tnon-
\nappearance of  his name\t in the\t Select List of 1983-84, the
\nappellant assailed  the validity of the aforesaid provisions
\nof rules  6(4)(i) and  6(4)(iii)(a) of\tthe Gujarat Judicial
\nService Recruitment  Rules, 1961 as amended upto 1979 on the
\nground that  it was  unreasonable, arbitrary, discriminatory
\nand violative  of Articles  14 and 16 of the Constitution of
\nIndia by  a Writ Petition in the High Court of Gujarat being
\nCivil Application  No. 2332  of 1984,  whereon\ta  rule\t was
\nissued on  December 17,\t 1984. The said rule after notice to
\nthe parties was discharged and it was held that the impugned
\nrules were  not arbitrary,  unreasonable or  irrationale and
\nthey are not also discriminatory.\n<\/p>\n
     The Governor  of Gujarat  framed the  Gujarat  Judicial
\nService Recruitment  Rules 1961 under proviso to Article 309
\nof the\tConstitution of\t India read  with Article 234 of the
\nConstitution laying  down the  mode of\trecruitment  to\t the
\nGujarat Judicial  Service. These  rules as amended upto 1979
\nprovide that  the Gujarat  Judicial Service shall consist of
\ntwo branches  namely  (i)  Junior  Branch  and\t(ii)  Senior
\nBranch. The junior branch shall consist of two classes, i.e.\n<\/p>\n
(a) Class  I comprising\t the cadre  of Civil  Judges (Senior
\nDivision) (b)  the Judges  of the Courts of Small causes and\n<\/p>\n
(c) Class  II comprising  Civil Judges (Junior Division) and
\nJudicial Magistrate  of First  Class. In accordance with the
\namended recruitment  rules 1979\t the cadre  of\tCivil  Judge
\n(Senior Division) shall consist of :-\n<\/p>\n
\t  (a) all  Judicial Officers  holding  on  the\tsaid
\n\t  date, the post of :-\n<\/p><\/blockquote>\n
\t  (i) Civil Judge (Senior Division)\n<\/p><\/blockquote>\n
\t  (ii) Chief Judicial Magistrate, and\n<\/p><\/blockquote>\n
\t  (iii) Metropolitan Magistrate\n<\/p><\/blockquote>\n
\t  (b) Officers recruited to the said cadre under sub
\n\t  rule (i) of Rule 4.<\/p><\/blockquote>\n
932<\/span><\/p>\n
     The Senior\t Branch shall  consist\tof  District  Judges
\nPrincipal Judge\t and Judges  of Ahmedabad  City Civil Court,
\nthe Chief  Metropolitan Magistrate, the Chief Judge of Small
\nCauses Court,  Ahmedabad, the  Additional Chief Metropolitan
\nMagistrate,  Ahmedabad\t and  the  Assistant  Judges.  Rules
\n6(4)(i) and  6(4)(iii)(a) clearly provide that a Civil Judge
\n(Senior Division)  after completing 48 years of age will not
\nbe eligible  for consideration\tfor promotion to the post of
\nAssistant Judge\t and his  name appearing in select list will
\nbe struck  out from  the select list on his completion of 48
\nyears i.e. on reaching 49 years of age.\n<\/p>\n
     The only  question for  consideration  is\twhether\t the
\nprovisions of  aforesaid rules\t6(4)(i) and  6(4)(iii)(a) of
\nthe Gujarat  Judicial  Service\tRecruitment  Rules  1961  as
\namended upto  1979 are invalid being arbitrary, irrationale,
\nunreasonable and  in contravention  of the  equality  clause
\nenvisaged in  Articles 14  and 16  of  the  Constitution  of
\nIndia. To  decide properly  this question, it is relevant to
\nconsider in this connection rule 6(2)(i), which provides for
\nappointment to\tthe post  of District  Judge.  The  relevant
\nexcerpt of the said rule is quoted hereinbelow :-\n<\/p>\n
\t  The appointment  to the  post of  a District Judge
\n\t  shall be made by the Governor :-\n<\/p><\/blockquote>\n
\t  (a) in  consultation\twith  the  High\t Court\tfrom
\n\t  amongst the  members of the Junior Branch who have
\n\t  ordinarily served as Assistant Judges; or\n<\/p><\/blockquote>\n
\t  (b) on  the recommendation  of the High Court from
\n\t  amongst members  of the  Bar who have practised as
\n\t  Advocates or\tPleaders for  not  less\t than  seven
\n\t  years in  the\t High  Court  or  Court\t subordinate
\n\t  thereto :-\n<\/p><\/blockquote>\n
\t  Provided that a person recruited at the age of not
\n\t  more than 45 years (except in the case of a person
\n\t  belonging to a community recognised as Backward by
\n\t  Government for the purpose of recruitment in whose
\n\t  case at  the age  of not more than 48 years) shall
\n\t  before he  is appointed  as a\t District Judge,  be
\n\t  appointed in the first instance to be an Assistant
\n\t  Judge\t  for\tsuch   period\tas   may,   on\t the
\n\t  recommendation
\n933<\/span>
\n\t  of the High Court, be decided by Government on the
\n\t  merits of his case.<\/p><\/blockquote>\n
     It appears\t that regarding\t appointment to the posts of
\nDistrict Judges\t by promotion  from amongst  members of\t the
\nJunior Branch  who have\t ordinarily served  as an  Assistant
\nJudge, there  is no  limit or  bar of age unlike that of the
\nappointment of\tan Assistant  Judge by\tpromotion  from\t the
\nmembers of Civil Judges (Senior Division) or from members of
\nCivil Judges  (Junior Division).  It is\t only in the case of
\ndirect recruitment  from amongst  the members  of the Bar to
\nthe post  of District  Judges there  is an  age limit  of 45
\nyears  which   is  relaxed  to\t48  years  in  the  case  of
\nrecruitment of persons belonging to the community recognised
\nas backward  by the Government. It was tried to be justified
\non behalf  of the respondents particularly by the High Court
\nof Gujarat  by filing  Counter that this age restriction for
\npromotion to  the post of Assistant Judge was in vogue since
\n1924 or\t so even  in the  erst-while State of Bombay, though
\nthere was no age limit for selection to the post of District
\nJudge from  the Bar.  It has  been further  stated that\t the
\nrationale under lying the age restriction for recruitment to
\nthe post  of Assistant\tJudge is  that such Assistant Judges
\nshould have  sufficient number\tof years  left\tbefore\tthey
\nreach the  age of  superannuation, so that their service can
\nbe utilized  as District  Judges. There would be no point in
\nselecting them\tas Assistant  Judges if\t they have to retire
\nonly as Assistant Judges. It has been further stated therein
\nthat the present pay scale of Civil Judges (Senior Division)
\nis Rs.1300-1700\t p.m. and the same is the scale for the post
\nof an  Assistant Judge.\t So if\tan incumbent  is taken as an
\nAssistant Judge\t at an\tadvanced stage he may have to retire
\nonly as\t an Assistant Judge with the result that he will not
\nhave any  pecuniary gain  by being  promoted as an Assistant
\nJudge from the post of Civil Judge (Senior Division). It has
\nbeen further stated that the law making authority might have
\nconsidered that\t a Civil  Judge (Senior\t Division) or  Civil
\nJudge (Junior  Division) who  completes 48  years of age may
\nnot be\tfully equipped\twith the physical and mental calibre
\nfor that  higher post calling for essentially different type
\nof duties,  namely conducting  Sessions cases, appeals, etc.
\nThe High  Court duly  considered this aspect of the case and
\nthereafter the\trules in  question were framed. No rejoinder
\nhas, however, been filed on behalf of the State.\n<\/p>\n
934<\/span><\/p>\n
     Similar contentions  were made before us by the learned
\ncounsel who  appeared on behalf of the High Court to support
\nthe rationale  behind the laying down of the age bar for the
\npurpose of  promotion to the post of Assistant Judge in case
\nof persons already in service.\n<\/p>\n
     The Division  Bench of the Gujarat High Court held that
\nthis system  was in  vogue for\tmany decades,  even  in\t the
\nbilingual State\t of Bombay.  Though there was no restriction
\nregarding age  for selection  from the members of the Bar to
\nthe  post  of  District\t Judge,\t there\twas  age  limit\t for
\nselection and  appointment by  promotion from the members of
\nJunior Branch  to the  posts of\t Assistant Judges.  This age
\nrestriction  provided  by  the\trecruiting  authorities\t for
\ndifferent cadres  of posts is not repugnant to Article 14 of
\nthe Constitution.  It was  also observed that members of the
\nBar have  got free  atmosphere to  work and there was enough
\nscope for them to better develop their mental faculty. If in
\nthe interest  of an  important post  like that of a District
\nJudge, a  member of  the Bar  is to be recruited in order to
\nenthuse fresh  blood  at  that\timportant  position  of\t the
\nservice cadre,\tit can\tbe said\t to  be\t a  different  class
\naltogether.  As\t  such\tthere\twas  no\t  discrimination  by
\nintroducing age\t bar in\t the recruitment  rules\t so  far  as
\nappointment to\tthe post of Assistant Judges by promotion is
\nconcerned. The\tclass of  Assistant Judges  and the Class of
\nDistrict Judges\t for this  purpose constitute  two different
\nclasses.\n<\/p>\n
     This reasoning  given by  the  High  Court\t is  totally
\nunsustainable for the simple reason that if a person holding
\nthe post  of Civil Judge (Senior Division) who has completed
\n48 years  of age is considered to be not fully equipped with
\nthe physical  and mental  calibre for being appointed to the
\nhigher post of Assistant Judge, then on the same analogy how
\na member  of the  Bar will  be considered  at the  age of 48
\nyears to  be most suitable for being appointed to the higher
\nand responsible\t post of  District Judge and such appointees
\nwill infuse  fresh blood  at the  important service.  On the
\nother hand  it is  well established  that with the coming of
\nage and\t experience, a\tJudicial Officer becomes more suited
\nand well equipped to perform and discharge the higher duties
\nand  responsibilities\tattached  to  the  higher  posts  of
\nAssistant Judge and that of District Judge.\n<\/p>\n
935<\/span><\/p>\n
     The posts\tof Assistant  Judge as\twell as\t of District
\nJudge are  included in\tSenior Branch  of  Gujarat  Judicial
\nService. It  is incomprehensible  how these  two  cadres  of
\nAssistant Judges  and District\tJudges can be treated as two
\ndifferent  classes   altogether,  thereby   justifying\t the
\nintroduction of\t age restriction  in regard to selection and
\nappointment by\tpromotion to  the post\tof  Assistant  Judge
\nwhile doing  away  with\t any  such  sort  of  age  limit  or
\nrestriction in\trespect of  appointment to  the\t post  of  a
\nDistrict Judge\tby promotion from amongst the members of the
\nJunior Branch  who have served as Assistant Judges. Articles
\n14 and\t16 of  the Constitution ensure that there should not
\nbe any\tdiscrimination\tin  the\t matter\t of  appointment  in
\nservice,  nor\tthere\twill   be   any\t  arbitrariness\t  or
\nunreasonableness in  the rules\tof recruitment providing for
\nappointment to\tthe service either by promotion or by direct
\nrecruitment. There  is no  nexus to  the object sought to be
\nachieved by  introducing the  age restriction as regards the
\npromotion by appointment to the post of Assistant Judge from
\namongst the  members of the Gujarat Judicial Service (Junior
\nBranch), as  provided in  Rules 6(4)(i)\t and 6(4)(iii)(a) of
\nthe said  rules. But in respect of appointment to the higher
\npost of\t a District  Judge by  promotion  from\tamongst\t the
\nmembers of  the Junior\tBranch who  have served as Assistant
\nJudges, no such restriction of age has been provided in Rule
\n6(2)(i)(a) and\t(b) of the said rules. There is obviously no
\nrationale, nor\tany reasonableness  for introduction of this
\nage bar in regard to appointment by promotion to the post of
\nan Assistant  Judge. The  rule, is, therefore, arbitrary and
\nit violates  the salutory principles of equality and want of
\narbitrariness  in   the\t matter\t  of  public  employment  as
\nguaranteed by  Articles 14 and 16 of the Constitution. It is
\npertinent to refer in this connection to the observations of
\nthis Court in the case of E.P. Royappa v. State of Tamilnadu
\n& Anr.\t[1974] 2  S.C.R. p.  348 at  p. 386 which are in the
\nfollowing terms :-\n<\/p>\n
\t  “Though enacted  as  a  distinct  and\t independent
\n\t  fundamental right  because of its great importance
\n\t  as a principle ensuring equality of opportunity in
\n\t  public  employment   which  is  so  vital  to\t the
\n\t  building  up\tof  the\t new  classless\t egalitarian
\n\t  society envisaged  in the Constitution, Art. 16 is
\n\t  only an instance of the application of the concept
\n\t  of equality  enshrined in  Art.14. In other words,
\n\t  Art.\n<\/p><\/blockquote>\n
936<\/span><\/p>\n
\t  14 is\t the genus  while Art. 16 is a species, Art.
\n\t  16 gives effect to the doctrine of equality in all
\n\t  matters relating  to public  employment. The basic
\n\t  principle which,  therefore, informs both Arts. 14
\n\t  and  16   is\tequality   and\tinhibition   against
\n\t  discrimination……..\n<\/p><\/blockquote>\n
\t  Equality is  a dynamic  concept with\tmany aspects
\n\t  and dimensions  and it cannot be “cribbed, cabined
\n\t  and confined”\t within traditional  and doctrinaire
\n\t  limits.  From\t  a  positivistic   point  of  view,
\n\t  equality is  antithetic to  arbitrariness. In fact
\n\t  equality and\tarbitrariness are sworn enemies; one
\n\t  belongs to the rule of law in a republic while the
\n\t  other, to  the whim  and caprice  of\tan  absolute
\n\t  monarch. Where  an act is arbitrary it is implicit
\n\t  in  it  that\tit  is\tunequal\t both  according  to
\n\t  political logic and constitutional law.”<\/p><\/blockquote>\n
     Similar observations  have been  made in  the  case  of
\nManeka Gandhi  v. Union\t of India<\/a> [1978] 2 S.C.R. p. 621. It
\nhas been observed that :-\n<\/p>\n
\t  “Article 14  strikes\tat  arbitrariness  in  State
\n\t  action  and\tensures\t fairness  and\tequality  of
\n\t  treatment. The  principle of reasonableness, which
\n\t  legally  as\twell  as   philosophically,  is\t  an
\n\t  essential element of equality or non-arbitrariness
\n\t  pervades Article 14 like a brooding omnipresence.”<\/p><\/blockquote>\n
     The reach\tand  ambit  of\tArticle\t 14  has  been\tvery
\nsuccinctly reiterated  again by\t this Court  in the  case of
\nR.D. Shetty  v. International  Airport Authority  of India &
\nOrs.<\/a> [1979] 3 S.C.R. p. 1014 as follows :-\n<\/p>\n
\t  “It is now well settled that Article 14 strikes at
\n\t  arbitrariness in State action and ensures fairness
\n\t  and equality\tof treatment. It requires that State
\n\t  action must  not be arbitrary but must be based on
\n\t  some rational\t relevant principle  which  is\tnon-
\n\t  discriminatory; it  must  not\t be  guided  by\t any
\n\t  extraneous or\t irrelevant considerations,  because
\n\t  that would be denial of equality. The principle of
\n937<\/span>
\n\t  reasonableness and rationality which is legally as
\n\t  well as  philosophically an  essential element  of
\n\t  equality  or\tnon-arbitrariness  is  protected  by
\n\t  Article 14  and it  must characterise\t every State
\n\t  action whether  it be under authority of law or in
\n\t  exercise of  executive  power\t without  making  of
\n\t  law.”<\/p><\/blockquote>\n
     We have already stated hereinbefore that the provisions
\nof rules  6(4)(i) read\twith  6(4)(iii)(a)  are\t irrational,
\narbitrary and  unreasonable inasmuch as there is no nexus to
\nthe object  sought to  be achieved  by introducing  the\t age
\nrestriction in\tregard to  appointment of Assistant Judge by
\npromotion from amongst members holding posts of Civil Judges
\n(Junior Division)  and those  in the  cadre of\tCivil Judges
\n(Senior Division)  whose names\thave  been  entered  in\t the
\nselect list.  We have  also held  that though  the  post  of
\nAssistant Judge as well as the post of District Judge belong
\nto the Senior Branch of Gujarat Judicial Service, yet in the
\nhigher cadre  of District  Judge no  such age  bar has\tbeen
\nintroduced. Moreover,  as has  been stated  by\tthe  learned
\ncounsel appearing  on behalf  of the  High Court  of Gujarat
\nthat  this   rule  regarding   age  restriction\t  which\t was
\noriginally introduced  in the  recruitment rules of Judicial
\nServices in  the bilingual  State of Bombay has subsequently
\nbeen deleted  and discontinued\tin the\trelevant Recruitment
\nRules of  Maharashtra Judicial\tService, it  is curious that
\nthis archaic,  unreasonable and irrational rule which is ex-
\nfacie arbitrary\t and  discriminatory  has  been\t allowed  to
\ncontinue in  the Gujarat  Judicial Service Recruitment Rules
\n1961 as amended upto 1979.\n<\/p>\n
     We wish  to make  it clear\t that our  observations made
\nhereinbefore should  not be  construed to  mean\t that  there
\ncannot be any fixation of age of superannuation in different
\ngrades of  other services namely armed forces, air force and
\nnaval force.  In such services the fixation of different age
\nof superannuation  in different grades may be made in public
\ninterest in order to ensure excellence in service as well as
\nmerit and  efficiency which  to a  great  extent  depend  on
\nphysical fitness apart from merit.\n<\/p>\n
     In the  premises  aforesaid,  the\tprovisions  of\trule
\n6(4)(i)\t and  rule  6(4)(iii)(a)  of  the  Gujarat  Judicial
\nService Recruitment (amended rules), 1979 is invalid and bad
\nas it is
\n938<\/span>
\nunreasonable, irrationale, arbitrary and discriminatory, and
\nviolating the  equality clause\tenvisaged in Articles 14 and
\n16 of the Constitution of India.\n<\/p>\n
     These rules in so far as they impose age restriction in
\nthe matter  of promotion  to the post of Assistant Judge are
\nliable to  be quashed  and set aside and the judgment of the
\nHigh Court  of Gujarat is also set aside. We direct that the
\nname  of  this\tappellant  shall  be  deemed  to  have\tbeen
\ncontinued in  the select  list of  1983-84 and\this case for
\nappointment  to\t  the  post  of\t Assistant  Judge  shall  be
\nconsidered on that basis by the authorities concerned. If he
\nis so appointed to the post of Assistant Judge, he shall get
\nhis due\t seniority and\tall retiral  benefits reckoning\t his
\nservice on  that basis.\t The appeal  is accordingly allowed.
\nThere will be no order as to costs.\n<\/p>\n
A.P.J.\t\t\t\t\tAppeal allowed.\n939<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Indravadan H. Shah vs State Of Gujarat & Anr on 19 March, 1986 Equivalent citations: 1986 AIR 1035, 1986 SCR (1) 926 Author: B Ray Bench: Ray, B.C. (J) 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-236987","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndravadan H. 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