Bombay High Court
Mrs. Kavita Sandesh Patil vs The Registrar on 22 October, 2010
Bench: B.H. Marlapalle, U. D. Salvi
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sas
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3775 OF 2010
Mrs. Kavita Sandesh Patil, ]
Age: 41 years, Occu: Advocate, ]
Residing at Plot No.161, Abhinav ]
Nagar, Borivali (E), Mumbai-400 066. ] ..Petitioner.
V/s.
1) The Registrar, High Court, Bombay-32. ]
ig ]
2) The Registrar (Legal), Appellate Side. ]
High Court, Mumbai - 32. ]
]
3) The State of Maharashtra ] ..Respondents.
Mrs P.U. Badadare for petitioner.
WITH
WRIT PETITION NO.3713 OF 2010
Mr. Dilip Shivajirao Ghumare, ]
Age: 41 years, Occu: Judicial Officer, ]
Metropolitan Magistrate, 62nd Court, ]
Kurla, Mumbai-400 070. ] ..Petitioner.
V/s.
1) The Registrar General,
High Court, Bombay, Appellate Side, ]
Fort, Mumbai - 400 032. ]
]
2) The State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary Department, ]
State of Maharashtra, ]
Mantralaya, Mumbai - 400 032. ] ..Respondents.
Mr.C.T. Chandratre for petitioner.
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WITH
WRIT PETITION NO.4657 OF 2010
Sou. Premlata Bhupal Shetti, ]
Age: 46 years, Occu: Advocate, ]
R/o. Nandinikar Galli, Mangalwar ]
Peth, Miraj, Dist. Sangli ] ..Petitioner.
V/s.
1) The Registrar General, ]
High Court, Appellate Side, ]
Mumbai -32. ]
]
2) Registrar (Legal) High Court ]
Appellate Side, Mumbai - 32. ] ..Respondents.
Mr. Manoj Patil for petitioner.
WITH
WRIT PETITION NO.5376 OF 2010
1. Smt. Padma w/o. Murlidhar Chandekar ]
Age: 49 years, Occu: Lawer, ]
R/o. 275, Shankar Nagar, Nagpur. ]
2. Smt. Sunita w/o. Prabhat Chachondia, ]
Age: 53 years, Occu: Lawer, ]
R/o. Near Shani Mandir, Sitabuldi, ]
Nagpur. ]
3. Smt. Suhas w/o. Nilotpal Deshpande ]
Age: 44 years, Occu: Lawer, ]
R/o. Ramnagar, Nagpur ]
4. Smt. Vrushali w/o. Jitend Pradhan - ]
Maiden name Vrushali d/o. Vilas ]
Kalantare, Age: 49 years, Occu: Lawer, ]
R/o. 12, Arun Kunj, Bajaj Nagar,Nagpur. ]
5. Archana Vinaykrao Kadu, ]
Age: Major, Occu: Lawer, Residents of ]
Friends Colony, Nagpur. ]
6. Jayashree Atul Mahajan, ]
Aged Major, Occu: Lawer, R/o. Nagpur ]
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7. Ms. Mrunal B. Naik ]
Age: 41 years, R/o. Shankar Nagar, ]
Nagpur ] ..Petitioners.
V/s.
1) The State of Maharashtra through ]
its Secretary, Law & Judiciary, ]
Mantralaya, Mumbai -32. ]
]
2) The Registrar General, ]
High Court of Judicature at Bombay ]
Bombay. ] ..Respondents.
Mrs. Padma Chandekar - petitioner No.1 in person.
Mr. Kiran Mohile for remaining petitioners.
ig WITH
WRIT PETITION NO.5377 OF 2010
Miss Vijaya D/o. Wamanrao Balpande ]
Age: 37 years, Occu: Legal Practitioner ]
R/o. Opposite Shivaji Science Colleg, ]
Congress Nagar, Nagpur. ] ..Petitioner.
V/s.
1) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, ]
Mantralaya, Mumbai - 400 032. ]
]
2) The Registrar General, ]
High Court of Judicature at Bombay, ]
Mumbai. ] ..Respondents.
None for petitioner.
WITH
WRIT PETITION NO.5378 OF 2010
Smt. Rachana w/o. Avinash Wasnik, ]
Age: 40 years, Occu: Advocate, R/o. 23 ]
Bezonbagh, Kamptee Road, Nagpur. ] ..Petitioner.
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V/s.
1) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ]
]
2) The Registrar General, ]
High Court of Judicature at Bombay, ]
Mumbai. ]
3) The Registrar (Legal) ]
High Court of Judicature at Bombay, ]
Mumbai. ] ..Respondents.
None for petitioner. ig WITH
WRIT PETITION NO.5379 OF 2010
1) Ayalasomajula Jaisree Rao, ]
Age: 53 years, Occu: Legal Practitioner ]
R/o. 160, Godawari, Apartment, Hill Top, ]
Nagpur. ]
2) Sou. Sujata Gajanan Kasbekar, [
Age: 44 years, Occu: Legal Practitioner ]
R/o. 96, Indrapastha Society, Poonam, ]
Vihar, Swalambinagar, Nagpur. ]
3) Sou. Chandraprakash Deo, ]
Age: 53 years, Occu: Legal Practitioner ]
R/o. Jageshwar Apartment, Sawarkar Nagar, ]
Nagpur. ] ..Petitioners.
V/s.
1) The Registrar General, ]
High Court of Judicature at Bombay, ]
Bombay. ]
]
2) The State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ] ..Respondents/
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None for the petitioners.
WITH
WRIT PETITION NO.5382 OF 2010
Shri Hemant s/o. Narayan Bhondge, ]
Age: 40 years, Occu: Legal Practitioner, ]
R/o. Plot No.45, Vishwakarma Nagar, ]
Road No.10, Near Ajni P.S. Nagpur-27. ] ..Petitioner.
V/s.
1) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ig ]
]
2) The Registrar General, ]
High Court of Judicature at Bombay, ]
Bombay. ] ..Respondents.
Mr. Kiran Mohile for petitioner.
WITH
WRIT PETITION NO.5383 OF 2010
Rajesh S/o. Balkrishna Visputa, ]
Age: 45 years, Occu: Legal Practitioner, ]
R/o. 'Vandan' Agarwesh, Jaihind Chow. ]
Old City, Akola. ] ..Petitioner.
V/s.
1) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ]
]
2) The Registrar General, ]
High Court of Judicature at Bombay, ]
Mumbai. ] ..Respondents.
None for petitioner.
WITH
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WRIT PETITION NO.5384 OF 2010
Sou. Meena w/o. Nitin Hiwase, ]
Age: 37 years, Occu: Legal Practitioner ]
R/o. 19, Nav-Nirman Society, Ranapratapnagar ]
Nagpur. ] ..Petitioner.
V/s.
]
1) The Registrar General, ]
High Court of Judicature at Bombay, ]
Bombay. ]
]
2) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya,
ig ]
Mumbai - 400 032. ] ..Respondents.
None for petitioner.
WITH
WRIT PETITION NO.5385 OF 2010
1. Motiram S/o. Vithoba Amle, ]
Age: 39 years, Occu: Legal Practitioner, ]
R/o. Flat No.2F, Manohar Vihar Colony, ]
Hazaripahad Road, Nagpur, Dist. Nagpur. ]
]
2. Ms. Varsha w/o. Jagdeesh Dongare ]
Age: 38 years, Occu: Legal Practitioner, ]
R/o. Maitkrikunj, Gajanan Colony, Opp. ]
Balbharti Pathya Pustak, VMV Road, ]
Amravati, Tal. & Dist. Amravati. ] ..Petitioners.
V/s.
1) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ]
]
2) The Registrar General, ]
High Court of Judicature at Bombay, ]
Mumbai. ] ..Respondents.
None for petitioner.
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WITH
WRIT PETITION NO.5386 OF 2010
Nita Pramod Nimablkar, ]
Age: 40 years, Occu: Legal Practitioner, ]
R/o. 22, Pioneer Residency Park, ]
Somalwada, Nagpur 25 (MS) ] ..Petitioner.
V/s.
1) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ]
]
2) The Registrar General, ]
High Court of Judicature at Bombay,
ig ]
Mumbai. ] ..Respondents.
Mr. Kiran Mohile for petitioner.
WITH
WRIT PETITION NO.5515 OF 2010
Mrs. Jyoti S.Iyer, ]
Adult, Occu: Service, Being Member Central ]
Mumbai Consumer District Forum,Mumbai ]
R/A. B-1, Taruna CHS Ltd., Opp. Johnson & ]
Johnson Co., L.B.S. Marg, Mulund (W), ]
Mumbai - 400 080. ] ..Petitioner.
V/s.
1) The Registrar General, ]
High Court of Judicature at Bombay, ]
Appellate Side, Fort, Mumbai- 400 032. ]
]
2) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ] ..Respondents.
Mrs. Jyoti Iyer - petitioner in person.
WITH
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WRIT PETITION NO.6284 OF 2010
Renuka w/o. Vishnu Ghule (Palwe) ]
Age: 40 years, Occu: Advocate, ]
R/o. Jaibhavani Nagar, Aurangabad, ]
Dist. Aurangabad. ] ..Petitioner.
V/s.
1) State of Maharashtra, ]
Through the Secretary, ]
Law & Judiciary, Mantralaya, ]
Mumbai - 400 032. ]
]
2) The Registrar General, ]
High Court, Bombay, ] ..Respondents.
None for the petitioner.
Mrs. M.P. Thakur, A.G.P. for State.
Mr. M.S. Karnik for High Court.
CORAM : B.H. MARLAPALLE AND
U.D.SALVI, JJ.
DATED : 22ND OCTOBER, 2010
P.C. :-
1. Rule. Respondents waive service.
2. These petitions have been finally heard with the consent of
the parties.
3. The petitioners in this group of petitions have submitted their
applications for being selected to the posts of Judge, Family Court in
response to the advertisement published on 27/09/2010 in the local
newspapers and also on the website of this Court. The High Court had
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received in all 895 applications and they were all subjected to scrutiny.
476 applications were accepted and the remaining came to be rejected
on various grounds. 166 applications were rejected / were found to be
ineligible on the sole ground as required in clause 11(e) of the
advertisement, in as much as, a declaration in Form 'A' appended to the
Maharashtra Civil Services (Declaration of Small Family) Rules, 2005
('Rules of 2005' for short) was not submitted along with the application
form submitted by each of the applicants. The present petitioners are 14
amongst the 166 applicants found to be ineligible on this ground i.e.
failure to submit along with the application, the declaration in Form 'A'
appended to the Rules, 2005. Three of the petitioners had submitted
representation against the said decision holding them ineligible and the
remaining petitioners have directly approached the High Court. A
Division Bench of this Court (Nagpur) passed an interim order on
23/04/2010 and directed as under:-
" We hereby direct the respondent nos.1 & 2 to permit the
petitioners to participate in the process of selection for the posts
of Judges, Family Court, scheduled to commence from 2-5-2010.
However, the result of selection process of the petitioners should
not be declared without obtaining the permission of this Court. It is
made clear that grant of permission to participate in the selection
process is provisional and shall not create any equity in favour of
the petitioner/s and shall be subject to the result of the petitions. "
4. However, the selection process did not commence from
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02/05/2010 and remained stayed in view of the administrative decision
dated 30/04/2010 taken by the Selection Committee. The petitions filed
at the Nagpur Bench and Aurangabad Bench came to be transferred to
the principal Bench.
5. As per the petitioners, failure to submit the declaration in
Form "A' appended to the Rules, 2005 along with the application should
not be treated as a disqualification for participation in the selection
process, though it may be a disqualification for appointment to the post
of Judge, Family Court. Our attention was invited to clause 5 of the
advertisement and it was submitted that the certificates which were
necessarily required to be submitted along with the application have
been set out therein and the declaration in Form 'A' was not one of the
certificates mentioned therein. It was in this background sought to be
stated before us that failure to submit the declaration in Form 'A' should
have been treated as an irregularity so as to correct it by the concerned
candidate within the specified period of one or two weeks, rather than
declaring them ineligible solely on that ground. In support of this
contention, our attention was invited to clause 12 of the application
submitted by each of the petitioners in the prescribed form. In clause
12, the applicant is required to mention the number of children along with
their names and dates of birth. When such an information was available
on record and in the prescribed application by each of the candidates,
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the submission of declaration in Form "A' was merely a procedural
requirement and it could not have been treated as a mandatory
requirement so as to reject the application during the process of scrutiny.
The petitioners also state that none of them have more than two children
and in fact few of them have also declared that they do not have any
child. In such a situation, the submission of declaration in Form 'A' was
only a confirmatory requirement for which the petitioners could have
been called upon to comply within a fixed period before the selection
process commenced, rather than holding them ineligible in the selection
process. It was also submitted that Section 4 of the Family Courts Act,
1984 r/w. Family Courts (Recruitment and Service Conditions) Rules,
1990 does not provide for such a requirement as a mandatory condition.
6. Mr. Karnik, the learned Counsel appearing for the
respondent No.1 submitted that clause 11 of the advertisement states
that declaration in Form 'A' should be submitted along with the
application. He also referred to the affidavit in reply and urged that when
the applications are scrutinized, there were different grounds for deciding
ineligibility and the candidates who were applying for the post of Judge,
Family Court ought to have followed the requirements mentioned in the
advertisement and if they failed in complying with the said requirements,
they cannot find fault in the decision taken by the Scrutiny Committee in
rejecting their applications by holding them ineligible. Mr. Karnik also
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invited our attention to Rule 4 of the Rules of 2005 and emphasized that
there is a mandate to submit the declaration in Form 'A' along with the
application for any service under the State of Maharashtra. He,
therefore, urged that the petitions are required to be dismissed. He also
pointed out that in all 476 applications are found to be eligible and if the
petitioners are held as eligible candidates, the applications which are
166 in numbers will be added to the list of the eligible applications and
the number of eligible applications will be disproportionate as well as
administratively unmanageable to administer the selection tests, having
regard to the fact that there are in all 15 clear vacancies and 6
anticipatory. In short, it was submitted by Mr.Karnik that the ratio of
eligible applications as of now is already 1: 24 and, therefore, even
otherwise, there are no mitigating circumstances to show leniency by
giving some time to the petitioners to submit the declaration in Form 'A'
so as to hold them eligible.
7. Clause 5, 11, 19 & 20 of the advertisement are reproduced
as under :-
"5) (a) A candidate, who is not already in service, must submit with his
application copies of certificates showing:-
i) his age as on the date of the Advertisement.
(ii) his standing as Practitioner in Court.
iii) that he is of good moral character, from two respectable
persons.
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iv) that he is certified to have sufficient knowledge of Marathi
to enable him to speak, write and translate with facility into
English and vice versa.
v) other certificates in support of the claim to have one or the
other qualifications referred to above.
vi) In case the candidate is a practising Advocate, two
separate recommendation from practising Advocates
designated as Senior Advocates or from practising
Advocates having more than 20 years standing at the Bar,
certifying that the candidate is suitable appointment as a
Judge of the Family Court, should be sent directly under
sealed cover by the recommending Advocates to the
Registrar General, High Court, Bombay - 400 032 and
marked "Confidential" - Family Court" so as to reach on or
before 30th October, 2009.
11) Disqualification for appoint in the service :-
No personal shall be eligible for appointment to the service;-
(a) -----
(b) ----
(c) ----
(d) ----
(e) if he has more than two children.
Explanation : - For the purposes of this clause, where a couple
has only one child, any number of children born out of a single
subsequent delivery shall be deemed to be one child.
Provided that, a person having more than two children on the date
of commencement of the Maharashtra Civil Services (Declaration
of Small Family) Rules, 2005 i.e. 28-4-2005, shall not be
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disqualified for appointment under this clause so long as the
number of children he had on the date of such commencement
does not increase.
A candidate shall submit,along with the application form, a
declaration in Form 'A' appended to the Maharashtra Civil
Services (Declaration of Small Family) Rules, 2005.
19) Application should be submitted only by Registered Post or Speed
Post in the prescribed format with copies of testimonials referred
to above and two passport size colour photographs, one duly
affixed on application and one in separate envelope without
pinning it to any paper so as to reach the office of the Registrar
General, High Court, Bombay - 400 032, on or before 30th
October, 2009. The application should be accompanied by fees in
the sum of Rs.1,000/- for General Category and Rs.500/- for
Backward Class candidates, in the form of demand draft in favour
of Registrar, High Court, Appellate Side, Bombay, payable at par
at Mumbai. Fees shall not be refunded in any case. The envelope
should be inscribed as "APPLICATION FOR THE POST OF
JUDGE, FAMILY COURT IN THE STATE OF MAHARASHTRA."
The candidates are required to download the format of the
application from the website of the High Court i.e.
http://bombayhighcourt.nic.in or obtained from the office of the
Registrar (Legal), High Court, Bombay or Principal Judge, City
Civil Court, Bombay or the President, Industrial Court, Bombay or
any of the District Courts, Industrial Courts in the State.
Applications received after prescribed date will not be entertained
on any ground.
20) The High Court reserves its right of short listing at the time of
scrutiny of applications by applying uniform and reasonable
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norms. "
8. Relying upon clause 20 of the advertisement, Mr. Karnik
submitted that the High Court was justified in holding the petitioners
ineligible during the course of scrutiny of the application and such a
condition has been applied uniformly in a reasonable manner and hence
the decision in the scrutiny process is, therefore, not vitiated nor said to
be illegal or contrary to any Rules.
9.
Rules, 2005 have been framed by the Government of
Maharashtra in exercise of powers conferred by the proviso of Article
309 of the Constitution of India and they have been published in the
State Government Gazette on 28/03/2007. Rules, 3, 4, 5 & 6 of the said
Rules read as under:-
" 3. Necessity of declaration of Small Family - Notwithstanding
anythings contained in any rules or orders or instruments made in
that behalf, regulating recruitment to Group A, B, C or D post in
Government Service or any other order or instruments made in
that behalf, the declaration of Small Family shall be an additional
essential requirement for an appointment to Group A, Group B,
Group C or Group D post in any Government Service:
Provided that, a person having more than two children on the date
of commencement of these rules shall not be disqualified for
appointment under these clause so long as the number of children
he had on the date of such commencement does not increase:
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Provided further that a child or more than one child born in a
single delivery within the period of one year from the date of such
commencement shall not be taken into consideration for the
purpose of disqualification mentioned in this clause.
4. Submission of declaration - a person who desires to apply for any
post in Group A, B, C or D in any Government Service shall
submit, along with the application form, a declaration in FORM "A"
appended to these rules.
5. Rules not to apply - These rules shall not be made applicable
where the selection process was started before the date of
commencement of these rules.
6. Power to Relax the Provisions of these rules - Notwithstanding
anything contained in these rules, Government may relax the
provisions of any these rules, under such circumstances in such
manner as shall appear it to be just and reasonable and shall
record the reasons for any such relaxation. "
As per Rule 4, a person who desires to apply for any post in
Group A, B, C or D in any Government Service shall submit along with
the application form, a declaration in Form 'A' appended to the Rules.
As per Mr. Karnik, the submission of such declaration along with the
application is a mandatory requirement. On the other hand, it is the
contention of the petitioners that though these rules have come into
force some time in the year 2005, when the advertisements were
released for selection to the posts of judicial officers under the
Maharashtra Judicial Services Rules, 2008, the requirement for
17 wp3775-10-jud ++
submission of declaration in Form 'A' was not stipulated and for the first
time such a condition has been incorporated in the subject
advertisement published for selection to the post of Judge, Family Court.
It was also submitted that it would not be appropriate to follow the
language of Rule 4 of the Rules, 2005 in isolation and on the face of the
information otherwise furnished by the petitioners in their applications,
the condition of submission of Rules deserves to be diluted and it could
not be said that it is a mandatory condition to submit along with the
application. The petitioners have also drawn our attention to Rule 6
which states that notwithstanding anything contained in the said Rules,
the Government may relax the provision under such circumstances and
in such manner as shall appear to be just and reasonable and shall
record the reasons for any such relaxation. It was contended by the
petitioners that Rule 6 permits intervention of this Court so as to do
justice to them by providing for some fixed time to comply with the
requirement of submission of the declaration in Form 'A'.
10. We have given our anxious considerations to the rival
arguments advanced before us. We have noted that the selection
process has remained in abeyance for the last about more than 6
months. The posts remained unfilled (by nomination) and in none of the
cases it is pointed out that the petitioner has more than two children. It
is not the case that any of the petitioners have not furnished the relevant
18 wp3775-10-jud ++
information in clause 12 of the prescribed application. The interim
orders with detailed reasons were also passed allowing the petitioners to
undergo the selection process subject to the final outcome in the
petitions. In such obtaining circumstances and while holding that the
submission of declaration in Form 'A' is necessary requirement under
Rules 2005, we are of the considered opinion that with the assistance of
Rule 6, there is a case made out to grant some relaxation by giving a
fixed time of one week to submit the declaration in Form 'A'. If any of
the petitioners or any of the 166 ineligible candidates fail to submit the
declaration within the prescribed time of one week to the Registrar
General in person or by post, they shall have to suffer the consequences
and will be finally treated to be ineligible. Without going into the
procedural aspects, in our opinion, a case has been made out to grant
an opportunity to the petitioners and other similarly placed candidates
(for failure to submit declaration in Form 'A' along with the application)
and permit them to undergo the selection process for the post of Judge,
Family Court. It would be not be at the same time a reason to deny such
relaxation only on the ground that the number the eligible candidates i.e.
476 is large enough for the selection procedure to administer and an
addition to the said number may cause administrative inconvenience.
On the other hand, it is also advisable, so as to select the best of the
candidates, to have a wider selection choice and whether the selection
process is administered to 500 candidates or 700 candidates, is not
19 wp3775-10-jud ++
going to make such a difference so as to deny an opportunity to
complete the procedural formalities. It is also an admitted position that
every candidate who undergoes the written test is not for the called viva
(oral interview). Only those candidates who secure 50% or more marks
in the written examination are held to be eligible for the viva and that
itself gives an additional stage of elimination.
11. In the premises we allow these petitions. We direct the
Registrar General to call upon all the petitioners and the remaining
candidates who were found to be ineligible on account of their failure to
submit a declaration in Form 'A' along with the application, by a written
notice to submit the same declaration within one week from the date of
the receipt of the notice, to him / her. In addition to such notice, a notice
will also be displayed on the website of the High Court. We note down
that the petitioners have waived such a notice. If the petitioners and
other similarly placed candidates submit a declaration in Form 'A' within
the said prescribed period, they shall be held to be eligible, unless found
to be ineligible on some other count, so as to undergo the selection
process for the post of Judge, Family Court.
12. We also direct the Registrar General to take all the
necessary steps so as to ensure that the selection process is
commenced and completed expeditiously and preferably by 31st
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January, 2011.
13. Rule is made absolute in the above terms with no order as
to costs.
(U.D.SALVI, J.) (B.H. MARLAPALLE, J.)
