1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 368 OF 2009 BAR COUNCIL OF MAHARASHTRA AND GOA ) A statutory Authority under Advocates Act, ) 1961 through the Secretary Ms Varsha Rokade ) having office at High Court Annexe ) 2nd Floor, Fort, Mumbai 400 032 ).. PETITIONER VERSUS 1) The STATE OF MAHARASHTRA ) through the Department of Law and ) Judiciary, having its office at Mantralaya ) Mumbai 400 032. ) 2) MAHARASHTRA STATE PUBLIC ) SERVICE COMMISSION ) having its Head Office at Bank of India ) Building, Third Floor, Mahatma Gandhi ) Road, Fort, Mumbai 400 001. ).. RESPONDENTS Mr A G Damle i/b Mr S S Punde for the Petitioner. Mr D A Nalawade, Government Pleader, for the State. CORAM : SWATANTER KUMAR, C.J. AND DR. D.Y. CHANDRACHUD, J. JUDGMENT RESERVED ON : 17TH MARCH 2009 JUDGMENT PRONOUNCED ON : 19TH MARCH 2009 2 JUDGMENT (PER SWATANTER KUMAR, C.J.) The challenge in this Writ Petition under Article 226 of the Constitution is to the eligibility criteria stated in the advertisement issued by the Maharashtra Public Service Commission, Mumbai (hereinafter referred to as “the Commission”) inviting application for preliminary examination to the post of Civil Judge (Junior Division) and Judicial Magistrate (First Class). A copy of this advertisement issued on 17th December 2008 is annexed as Exhibit “A” to the Petition. Clause 4 of the advertisement relates to conditions of eligibility. It reads as under :- “4) Conditions of Eligibility - (i) Age and Qualification – (Any one of the following A, B, C, D, E or F) A) For Advocate, Attorney or Pleader :- Age Limit - As on 1st April, 2009 – not less than 21 and not more than 35 years. Qualification – Candidate must hold a degree in law and must have practiced as an 3 Advocate, Attorney or Pleader in the High Court or Courts Subordinate thereto, for not less than 3 years on 17th December 2008. Note :- In case of Public Prosecutors, their service in that capacity will be taken as practice at the Bar. B) For Fresh Law Graduates - Age - As on 1st April, 2009, not less than 21 and not more than 25 years. Qualification - (i) Candidates must have secured the degree in law by passing all the examinations leading to the degree in the first attempt and (ii) has secured in the final year examination of the degree in law, not less than 55% marks OR (iii) In case of candidates holding Masters Degree in Law not less than fifty five percent marks; OR C) Members of ministerial staff to the High Court; OR D) Members of ministerial staff to the Courts subordinate to High Court; OR E) Members of staff working as Legal Assistant 4 and above in the legal section of the Law and Judiciary Department in Mantralaya, OR F) Members of ministerial staff of the office of the Government Pleaders attached to those court. Age – For C, D, E and F – As on 1st April, 2009, not less than 21 and not more than 45 years, provided such employee has put in minimum three years of service after obtaining degree in law.” 2. It is contended before us that there is no rational behind providing different age criteria, practice of three years for Advocate, Attorney or Pleaders in contrast to fresh Graduates who can appear for the examination. The upper age limit for the prior class is 35 years while for the later it is 25 years and this, according to the Petitioner, is arbitrary, discriminatory and is not in consonance with law. Reference can also be made to the advertisement issued by the Commission in the year 2007 where the age limit for fresh Law Graduates was to be not less than 20 years and not more than 35 years on 1st November 2007, while for other class the upper age limit was not more than 45 years. It is the contention of the Petitioner that the previous 5 advertisement was in consonance with the Maharashtra Judicial Service Rules, 2008 and ought to have been followed even for the current year. 3. The entry into the judicial services in the State of Maharashtra is controlled by the Maharashtra Judicial Service Rules, 2008 (hereinafter referred to as “the Rules”). Rule 5 of the Rules regulates recruitment, age limit as well as the qualification and eligibility conditions which ought to be satisfied before a candidate can be permitted to take this examination. The relevant Rule reads as under :- “5. Method of Recruitment, Qualification and Age Limit - xxxxx xxxxx xxxxx 3. Civil Judge, Junior Division (A) By nomination on the basis of aggregate marks obtained in a competitive examination conducted by the Commission in terms of the Examination Scheme as may be framed by the High Court. (a) Educational Qualification – Must hold a Degree in law. 6 (b) Experience – Must have practiced as an Advocate in the High Court or Courts subordinate thereto for not less than three years on the date of publication of Advertisement; or Must be a fresh Law Graduate who - (i) has secured the degree in law by passing all the examination leading to the degree in the first attempt; (ii) has secured in the final year examination of the degree in Law or in the case of candidates holding Master's Degree in Law in final year exam, not less than fifty five percent marks; or Must be working or must have worked as Public Prosecutor or Government Advocate for not less than three years in the post or posts. In computing the period of three years the period during which the candidate has worked as an Advocate shall also be included; or Must be a member of Ministerial Staff - (i) of High Court or Courts Subordinate thereto; or (ii) of Officers of the Government Pleaders attached to those Courts; or (iii) working as Legal Assistant and above in the Legal Section of Law and Judiciary Department in Mantralaya provided such employee has put in minimum three years of service after obtaining Degree in Law. 7 (c) Age - Not less than twenty one years and not more than : (i) thirty five years in the case of Advocates with three years practice, (ii) twenty five years in the case of fresh law graduates, (iii) forty five years in the case of ministerial staff : Provided that, upper age limit in each of the above categories may be relaxed by five years in respect of candidates belonging to communities recognised as backward by the Government for the purpose of recruitment; xxxxx xxxxx xxxxx” 4. These Rules are statutory rules and the advertisement issued by the Commission on 17th December 2008, impugned in the present Writ Petition, is in consonance with the Rules. In fact, in the Writ Petition and even during the course of the argument, there was no contention raised before us that the impugned advertisement is violative or ultra vires of the Rules. The advertisement being in consonance with the Rules, in law the impugned advertisement can hardly be faulted. The argument that the eligibility conditions are 8 arbitrary and/or discriminatory is also without any merit. In consonance with the recommendations of the Shetty Commission, clear objective is sought to be achieved by the advertisement for such classification. The purpose is to capture talest from amongst fresh Law Graduates for induction into the service at the very threshold. Other classes specified under the Rules and in the advertisement is intended to let Law Graduates optionally acquire some experience at the Bar and then take up the entrance examination. To provide some age difference between these two classes thus is essential. This can neither be termed arbitrary nor discriminatory. These are classes of different persons belonging to a different class and persons of the same classes are not being treated differently. The option lies with the applicant as to which class he desires to come in, whether at the threshold or after gaining experience at the Bar. It is not only a laudable object but also squarely takes care of the practical objective and problems which may arise in appointment of Judges of the Junior Division. 5. Reference can be made to a Division Bench judgment of 9 this Court in the case of Mukulika S Jawalkar and others vs State of Maharashtra and another, 2007 (6) Mh. L. J. 368, where the Court held that a criteria which provides fair competition and is no way unreasonable or violative of any protection available to the applicant under the Constitution or law, there is apparent nexus between the introduction of criteria and process of selection coupled with the object of selection process, there will be hardly any opportunity to the Court to interfere with such process. 6. Another Bench of this Court in the case of Kum. Jayshree Zine and others vs Maharashtra Public Service Commission and another, 2008 (6) Mh. L. J. 302, where the Court held as under :- “13. It is a settled principle of law that the appointing authority can lay down such pre- requisites conditions of eligibility for service as would be conducive to proper discipline amongst Government servants and they are also entitled to pick and choose from amongst the number of candidates offering themselves for employment under the government in accordance with the prescribed criteria, qualifications and requirements. Once such test is equally applied to the candidates, selection process can hardly be faulted with. Reference can be made to the 10 judgment of the Supreme Court in the case of Banarasidas v. State of U.P., AIR 1956 SC 520. Amplifying this principle of equal opportunity, the Supreme Court in the case of Jagdish Lal v. State of Haryana, AIR 1997 SC 2366 stated the principle that true import of equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but the presence of abilities and opportunity of excellence in each cadre/grade. It is not even the case of the petitioners that the specified criteria in relation to matters including the requirement of height and weight was not equally applied to all female candidates. The contention of the petitioners apparently suffers from a patent defect in asmuch as out of 62 seats reserved for female candidates, 17 have already been found fit, selected and appointed to the post. In other words, this is not even factually true that female candidates of appropriate height are not available in the State of Maharashtra and this requirement frustrates the principle of equality in selection.” 7. The above principle clearly shows that once the criteria is equally applied to all concerned, the action of the Respondent Commission can hardly be faulted. Furthermore, in fact the advertisement of 2007 had created certain ambiguity which stands clarified by the advertisement of 2008. All persons falling in two different classes, which itself is based on reasonable classification, are treated equally and equal opportunity is provided to them, and, 11 therefore, the question of violation of Articles 14 and 16 of the Constitution of India would not arise at all. 8. For the afore-said reasons, we find no merit in this Writ Petition. Writ Petition dismissed. No order as to costs. CHIEF JUSTICE DR. D.Y. CHANDRACHUD J. uday/judgment-09/wp368-09final.sxw