Arzoo Ramanlal Tapiawala vs State Of Gujarat

Sonia Gokani, J

The applicants are the original petitioners of the Special Civil Application No.13631 of 2020 and the opponents are the original respondents. The petitioners were appointed as Civil Judges and J.M.F.C. by order dated 17.07.2005 and were promoted to the cadre of Senior Civil Judge by Notification dated 31.12.2011. According to them, they are eligible for promotion to the cadre of District Judge.

In the Recruitment Process, 2019, the respondents had notified 14 vacancies to be filled up by limited competitive examination from the Senior Civil Judges having not less than five years of qualifying service. In this 10% quota the examination though was conducted, no candidate was found successful.

The grievance on the part of the applicants is that the said vacancies were required to be filled up by regular promotion as per the direction of the Apex Court in case of ALL INDIA JUDGES ASSOCIATION VS. UNION OF INDIA, reported in 2010 (15) SCC 170 and proviso to Rule 5(1)(ii) of the Gujarat State Judicial Service Rules, 2005, as amended by Notification dated 23.06.2011.

3.1 Further, the grievance on the part of the applicants is that the respondents initiated the new Recruitment Process, 2020 and notified 18 vacancies to be filled up under 10% quota. As a matter of fact, the respondents have carried forward 14 vacancies, which remained unfilled in the Recruitment Process, 2019, in the new Recruitment Process, 2020 which is in clear contravention of the judgment of the Apex Court as there cannot be carried forward of the unfilled posts.

3.2 It is further the case of the applicants that in the main petition being Special Civil Application No.13631 of 2020 the prayers are to the effect that their promotion to the cadre of District Judge in the Recruitment Process, 2019 be made with all consequential benefits including deemed date of promotion and seniority on 14 posts of 10% quota to be filled up by a limited competitive examination which had remained vacant due to non-availability of suitable candidates be filled up. They have also challenged the new Recruitment Process, 2020.

3.3 In the said petition, notice for final disposal was issued on 05.11.2020 and the matter has practically been heard finally. During the course of the hearing, the Court had instructed the learned counsel appearing for the High Court to take instructions as the matters were being adjourned for taking the instructions and lastly on 29.10.2021 the following order came to be passed:

"1.According to learned Standing Counsel Mr.Hardik Shah, the meeting with the learned Registrar General could not take place because of the busy schedule on both the sides.

2.Let the same be urgently conducted considering the fact that the matter is being now posted for the purpose on 17.11.2021. The progress which shall take place in the interregnum, shall be apprised to the Court."

3.4 According to the applicants, the respondents were expected to take appropriate actions on administrative side with regard to the said matter and not to take any step in furtherance of the new Recruitment Process, 2020 for the cadre of District Judge by accelerated promotion of 10% which is under challenge.

3.5 According to the applicants, after the Court adjourned the matter to 17.11.2021, the respondents issued the notice on 29.10.2021 itself notifying the main written examination (Descriptive Type) for the Recruitment Process to be conducted on 21.11.2021 and the Call Letters have also been made available on 15.11.2021 on HC-OJAS website. This action is severely being questioned on the ground of the same being contrary to the letter and spirit of the decision of the Apex Court and also alleged to be an action for overreaching the process of law which is pending before this Court. It is also alleged that to defeat the right of the applicants original petitioners, this is an attempt and therefore, the prayers sought for are as follow:

"17. The petitioners therefore humbly pray that YOUR LORDSHIPS BE PLEASED to issue a writ of or in the nature of mandamus and/or certiorari and/or prohibition and/or any other appropriate writ, order or direction :

17(a). to admit this petition and to allow the same by issuing Notice for Final Disposal on Returnable date;

17(b). to direct the respondents to consider the petitioners for promotion to the cadre of District Judge on any of the 14 posts of 10 % quota to be filled up by limited competitive examination in the Recruitment Process 2019 which have remained vacant due candidates to non-availability of suitable per the Result declared on as 7-10-2019 as per Annexure-E, and which are required to be filled up by regular promotion as per the proviso to Rule-5(1)(ii) of the Gujarat State Judicial Service Rules, 2005 as amended by Notification dtd. 23-6-2011, and as per the Order of the Hon'ble Supreme Court dtd. 20-4-2010 in All India Judges Association vs. UOI, 2010 (15) SCC 170, as per Annexure-L, and to give promotions to the petitioners as such;

17(c). to give promotions to the petitioners to the cadre of District Judge in the Recruitment Process-2019 with all consequential monetary and other benefits including deemed date of promotion and seniority w.e.f. the date from which other candidates in the same selection process of the year 2019 are given;

17(d). to quash and set aside the impugned new process of Recruitment-2020 initiated by the Resp. No.1 for 10% quota of promotion to the cadre of District Judge by limited competitive examination by Notice dtd.9-4-2020 as per Annexure-P;

17(e). PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to consider the petitioners for promotion to the cadre of District Judge on any of the 14 posts of 10 % quota to be filled up by limited competitive examination in the Recruitment Process - 2019 which have remained vacant due to non-availability of suitable candidates as per the Result declared on 7-10-2019 as per Annexure-E, and which are required to be filled up by regular promotion as per the proviso to Rule-5(1)(ii) of the Gujarat State Judicial Service Rules, 2005 as amended by Notification dtd. 23-6-2011, and as per the Order of the Hon'ble Supreme Court dtd. 20-4-2010 in All India Judges Association vs. UOI, 2010 (15) SCC 170, as per Annexure-L, and to give promotions to the petitioners as such, subject to further orders of this Hon'ble Court in the present petition;

17(f). PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED impugned new to stay the process of Recruitment-2020 initiated by the Resp. No.1 for 10 % quota of promotion to the cadre of District Judge by limited competitive examination by Notice dtd.9-4-2020 as per Annexure-P.

17(g). to grant any other appropriate and just relief/s including costs of this petition."

Affidavit-in-reply on behalf of the High Court Administration has been filed by the Registrar (Recruitment & Finance), who has urged that the reliefs sought for in the present application are identical to the reliefs sought in the main petition and no such reliefs can be permitted otherwise that would mean that the main petition is being allowed at an interim stage. According to him, the applicants were well aware of the commencement of Recruitment Process, 2020 & they had not pressed for any stay at any juncture. Had they been aggrieved they could have raised such grievance earlier. It is further urged that acquiescence on their part would mean that they have foregone the rights.

4.1 According to the respondents, the applicants had participated in the process of 65% quota to be filled up in the year 2020. Now, the main written examination for the process of 2020 for 10% accelerated and 25% (Direct Recruitment) is undertaken. So far as Ms.Dave is concerned, she in 10% accelerated promotion was absent, whereas Ms.Tapiawala and Mr.Radhanpurwala have not cleared the 10% accelerated examination. It is also further contended that carrying forward of unfilled posts would only apply to the proviso to the 25% quota. According to the respondents, the new Recruitment Process, 2020 for 18 posts in 10% quota through limited competitive examination had been initiated in view of the time prescribed by the Apex Court in case of Malik Mazhar Sultan and due to COVID-19 pandemic, the schedule time frame was delayed. Moreover, as stated on oath further the written examination of 10% quota is required to be held along with the candidates of 25% quota of advocates and on obtaining the orders from the Hon'ble The Chief Justice and the Members of Selection Committee, the Notification dated 29.10.2021 had been published for holding the main written examination with remaining 162 Judicial Officers of the cadre of the Civil Judge having five years of qualifying service in the feeder cadre of Senior Civil Judge.

4.2 It is further the say of the respondents that the query raised by the Court is under consideration and shall be placed before the Committee.

Affidavit-in-rejoinder has been filed by the applicant No.3. It is denied that the interim relief had not been asked for according to them, time and again the same had been requested for and therefore, it was expected that the respondent No.1 will act with restraint as the matter was pending before this Court. It is also further urged that the applicants are justified in seeking the interim direction when the examination process is on. The interpretation with regard to the unfilled vacancies also has been questioned seriously as it was the direction of the Apex Court where all High Courts had been asked to amend positively the existing Service Rules with effect from 01.01.2011. According to the applicants/original petitioners, the new Recruitment Process, 2020 for 18 posts of 10% quota could not have been proceeded without the prior permission of the Court.

We have extensively heard the learned advocate,Mr.Pujaraappearingwith Mr.R.B.Trivedi, learned advocate, Mr.Vaibhav Vyas who is representing the petitioners in Special Civil Application No.7915 of 2020 and learned advocate Mr.P.S.Chaudhary in Special Civil Application No.13458 of 2020 for the petitioners. For and on behalf of the opponents/original respondents the learned senior advocate, Mr.Gautam Joshi assisted by learned advocate, Mr.Hemang Shah have been heard extensively.

We have noticed that the issues raised before this Court in this Civil Application are identical to what have been pleaded in the main petitions. All the three petitions have been heard finally on 29.10.2021. Two aspects which were needed to be argued and concluded before this Court have been also addressed for which these matters had been posted today on reopening of the vacation.

It is pointed out to us by the learned senior advocate, Mr.Joshi that the process of 10% of the limited accelerated examination had been initiated on 05.03.2020 by way of detailed advertisement & the same continued all along when the applicants have participated as well. Examination which is now scheduled to be held on 21.11.2021 is the written examination for the 10% of the limited competitive examination from amongst the Senior Civil Judge, who are competent and in 25% quota of the direct recruitment from amongst the learned advocates. The challenge essentially is to the non-compliance of the directions of the Apex Court in relation to the unfilled quota of 10% for the year of 2019. The Gujarat State Judicial Services Rules (Amendment Rules), 2011 particularly Rule 5(1) is much emphasised upon for the purpose of pressing into service the decision of the Apex Court. As according to the applicants, not only the decision of the Apex Court, but the Rules amended after the said decisions also speak of unfilled posts not to be carried forward.

8.1 Insistence on the part of the petitioners is of considering the unfilled 10% quota by merging the same into 65% of quota meant for the promotion from Senior Civil Judge to the District Judge cadre without any independent process of examination by relying on the decision of the Apex Court rendered in case of ASHOK ALIAS SOMANNA GOWDA AND ANR. vs. STATE OF KARNATAKA BY ITS CHIEF SECY. AND ORS., reported in AIR 1992 SC 80. Insistence is to promote those who have approached this Court without considering those who have not chosen to approach the Court within a reasonable time.

9.Issues raised in the main petitions being identical, they shall be addressed cumulatively while delivering the judgment jointly in all these three petitions. They need not be addressed in this application. Reliefs sought in main matters are also reiterated here.

9.1 We are given to understand that all the three applicants are already appearing in the 10% quota of the new Recruitment Process of 2020 without prejudice to their rights which they have claimed before this Court. As the Court has already completed the hearing of the main petitions today and due to paucity of the time, it is not feasible for the Court to deliver the judgment, grant of any interim relief would tantamount to allowing the main petition & that would amount to derailing the process initiated in the month of March, 2020 as that would also imbalance the equilibrium when the examination is scheduled on 21.11.2021 including many other candidates.

Without in any manner hampering the process, it is being directed that the examination scheduled on 21.11.2021 shall be subjected to the outcome of main petitions being Special Civil Application Nos.13631, 7915 & 13458 of 2020. Let that aspect be also specifically clarified by the Registrar (Recruitment & Finance) on the High Court website or wherever deemed appropriate.

All the above referred three main petitions are posted for pronouncement of judgment on 03.12.2021.

With the above direction, present Civil Application stands disposed of.