Bombay High Court
Maharashtra Stae Judges Association ... vs The State Of Maharashtra Thr. Principal ... on 17 January, 2025
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-AS:2259-DB
RAMESHWAR 901-WP-3091-24-JUDGMENT .doc Rameshwar Dilwale
LAXMAN
DILWALE IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally signed
by RAMESHWAR WRIT PETITION NO.3091 OF 2024
LAXMAN
DILWALE Maharashtra State Judges Association }
Date: 2025.01.17 Through its President Shri Dilip S. Ghumare, }
19:18:52 +0530
Age-54 Years Occp-Judicial Service }
Address: Aurangabad District Court, }
Adalat Road, Aurangabad, Maharashtra }.. Petitioner
Versus
1. The State of Maharashtra through }
Principal Secretary, Law and Justice }
Department, Govt. of Maharashtra, }
Mantralaya, Mumbai 400032. }
2. The Registrar General, }
High Court of Judicature at Bombay, }
Fort, Mumbai-400032. }.. Respondents
...
Mr. Rahul S. Kadam with Mr. Shardul R. Diwan, Mr. Vedant P.
Babar, Mr. Ditya S. Aklekar, Advocates for the Petitioner.
Mr. Aditya R. Deolekar, Assistant Government Pleader for the
Respondent No.1.
Dr. Milind Sathe, Senior Advocate with Mr. Rahul Nerlekar,
Advocate for the Respondent No.2.
...
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
Date on which the arguments concluded : 18 th OCTOBER 2024
Date on which the judgment is pronounced : 17 th JANUARY 2025
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901-WP-3091-24-JUDGMENT .doc Rameshwar Dilwale
ORAL JUDGMENT : (PER : A. S. CHANDURKAR, J)
1. Rule. Rule made returnable forthwith and heard learned
counsel for the parties. The petitioner is an Association
comprising members of judicial service in the State of
Maharashtra. The Association has been formed with the object of
seeking welfare and improving the service conditions of Judges
working in various Courts in the State of Maharashtra. By this
writ petition, the Association through its President seeks to raise a
challenge to the recruitment process of District Judges through
Nomination. The advertisement dated 30th September 2023 with
regard to the selection process for the year 2022 as well as the
advertisement dated 9th January 2024 with regard to selection
process for the year 2023 having given cause to the Association,
this writ petition has been filed.
2. Mr. Rahul Kadam, learned counsel appearing for the
petitioner in support of the challenge raised to the aforesaid
advertisements invited attention to Rule 5 of the Maharashtra
Judicial Service Rules, 2008 (for short, 'Rules of 2008') and
submitted that 25% of the District Judges are to be recruited
through Nomination. The remaining 75% posts are required to be
filled in through regular promotion for 65% of the said posts and
accelerated promotion for 10% from amongst serving Senior Civil
901-WP-3091-24-JUDGMENT .doc Rameshwar Dilwale
Judges. Since the posts advertised exceeded the 25% quota as
permissible, the advertisements being in breach of Rule 5 of the
Rules of 2008 were liable to be set aside. It was pointed out that
as on 31st March 2022, the sanctioned strength of District Judges
was 423 and as on 31st March 2023, the sanctioned strength of
District Judges was 427. 25% of the aforesaid figure would come
to 105 posts and 106 posts respectively. This would result in the
excess post being created as "Ex-Cadre posts". Since the Rules of
2008 governed the recruitment and the said Rules were in the
nature of a Code in itself, the recruitment ought to be undertaken
accordingly. Attention was also invited to the Schedule appended
to the Rules of 2008 with regard to Rule 3(2) of the Rules of 2008.
Without amending the said Schedule, it was not open for the
second respondent to exceed the number of posts to be filled in
through Nomination. To substantiate his contentions, the learned
counsel for the petitioner placed reliance on the decisions in V. B.
Prasad Vs. Manager, P.M.D.U.P. School & Ors. AIR 2007 SC 2053,
Prem Parkash Pahwa Vs. United Commercial Bank and Another,
(2012) 1 SCC 123 and K. Prasad and others Vs. Union of India and
others, 1988 (Supp) SCC 269. It was thus submitted that the
impugned advertisements relating to recruitment by Nomination
were liable to be set aside.
901-WP-3091-24-JUDGMENT .doc Rameshwar Dilwale
3. The aforesaid submissions were opposed by Dr. Milind
Sathe, learned Senior Advocate appearing for the second
respondent. According to him, the provisions of Rule 5 of the
Rules of 2008 had not been breached. The posts advertised under
the impugned advertisements were within the permissible limit of
25%. He referred to paragraphs 5 to 7 of the affidavit in reply filed
on behalf of the second respondent to indicate the manner in
which the number of vacancies to be filled in had been worked out
and that the correct number of vacancies had been advertised. It
was further submitted that the submission as urged that without
amending the Rules of 2008 as well as the Schedule thereto, only
the number of posts indicated therein ought to be filled was
erroneous. The strength of Judges as on 31 st March of every year
was taken into consideration and on that basis the vacancies were
sought to be filled in. The quota for recruiting District Judges from
the three sources prescribed under Rule 5 of the Rules of 2008
was calculated on the basis of actual strength of the cadre and the
same did not cause any prejudice to any quota. Since the posts
advertised were in accordance with the cadre strength, there was
no merit in the challenge raised to the aforesaid advertisements. It
was thus submitted that the writ petition was liable to be
dismissed.
901-WP-3091-24-JUDGMENT .doc Rameshwar Dilwale
4. Having heard the learned counsel for the parties and having
perused the relevant material on record including the Rules of
2008, we are of the view that the challenge as raised to the
advertisements dated 30th September 2023 and 9th January 2024
cannot succeed. Under the provisions of Rule 5 of the Rules of
2008, 25% of posts in the cadre of District Judges are required to
be filled in by Nomination from amongst eligible candidates. By
Resolution dated 12th April 2017, the Permanent Selection and
Appointment Committee of the High Court had resolved that for
the purposes of determining the quota prescribed under Rule 5,
the actual working strength of Judges in that cadre as on 31 st
March of every year has to be taken into consideration. Since the
actual working strength of Judges would not be static every year,
the figures as indicated in the Schedule to the Rules of 2008
cannot govern the process of recruitment every year. In fact, the
note appended to the Schedule clearly states that the number of
posts in each cadre would change from time to time depending
upon the increase and decrease of the number of posts and the
exigency of the situation. It is on this basis that under the
advertisement dated 30th September 2023, 4 posts were sought to
be filled in under the 25% quota and under the advertisement
dated 9th January 2024, 19 vacancies under that quota were
901-WP-3091-24-JUDGMENT .doc Rameshwar Dilwale
sought to be filled in. The Association has not demonstrated that
the calculation of these posts as indicated in paragraphs 5 to 7 of
the affidavit filed on behalf of the second respondent is erroneous.
The petitioner seeks to rely upon the decisions in Vina Malik and
Rajasthan Judicial Service Association (supra). It is however found
that Rule 6 of the Rajasthan Judicial Service Rules is differently
worded from Rule 3 of the Rules of 2008. Since the vacancies to be
filled in are based on the existing strength of the cadre as on 31 st
March of the relevant year, the ratio of the aforesaid decisions
cannot be applied to the case in hand. It therefore cannot be said
that there has been any attempt to fill in the 25% posts through
Nomination is in excess of what is permissible under the Rules of
2008. The submission urged on behalf of the Association that the
posts in excess would thus amount to "Ex-Cadre posts" cannot be
accepted.
5. For the aforesaid reasons, we do not find that any relief can
be granted to the petitioner. The writ petition therefore stands
dismissed. Rule is discharged with no order as to costs.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
