1 wp-5380-10.sxw mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 5380 OF 2010 Mrs. Mayuri w/o Harshal Deshmukh .. Petitioner Vs. 1. Hon'ble High Court of Judicature at Bombay & Anr. Respondents Ms. Pooja Thorat for petitioner. Mr. M. S. Karnik for respondent no.1. Ms. S. S. Bhende, AGP for respondent no.2. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: NOVEMBER 26, 2010 PRONOUNCED ON: DECEMBER 3, 2010 JUDGMENT (PER B.H. MARLAPALLE, J.): 1. This petition filed under Article 226 of the Constitution questions the administrative decision of the High Court, rejecting the 2 wp-5380-10.sxw petitioner's application for the post of Judge – Family Court, on the ground that she was less than 35 years of age as on 27/9/2009. By an interim order dated 23/4/2010 respondent nos.1 and 2 were directed to permit the petitioner to participate in the process of selection for the post of Judge – Family Court scheduled to commence from 2/5/2010 and it was further directed that the result of selection process of the petitioner should not be declared without obtaining permission of the court. It was further clarified that the grant of permission to participate in the selection process was provisional and shall not create any equity in favour of the petitioner and shall be subject to the final result in the petition. However, it appears that the Selection Committee by its decision dated 30/4/2010 postponed the selection process. It appears, subsequently, this petition as well as other petitions came to be transferred to the Principal Bench and re-registered. Civil Application No. 2741 of 2010 for amendment was allowed by us on 22/10/2010 and by a further order passed on the same day, we had directed the High Court administration to place the issues raised by the petitioner before the Selection Committee. The Registrar (Legal & Research) has filed an affidavit and pointed out that the Selection Committee decided not to reduce the minimum age limit prescribed for the post. 3 wp-5380-10.sxw 2. On 27/9/2009, an advertisement was released by the High Court administration inviting applications to fill in 15 posts (existing) and 6 posts (probable) of Judge – Family Court. The eligibility of the candidates applying for the said post was set out in Clause 2 of the said advertisement and as per the same it was stipulated that as on 27/9/2009 the applicant must not be less than 35 years of age. The petitioner is born on 10/10/1974 and thus she completed the age of 35 years on 9/10/2009. She submitted her application on 15/10/2009 i.e. on completing the age of 35 years for the post of Judge – Family Court and enclosed all the relevant documents regarding her qualifications, age and experience etc. The last date for submission of the application, as per the advertisement, was 30/10/2009. As per the petitioner on 12th April, 2010 the High Court published the list of the candidates called for written test and in the said list her name did not find place. Within two days thereafter the High Court published the list of candidates whose applications were rejected and her name was included in the said list which indicated that her application was rejected for reason No.12 in the advertisement i.e. “age of 35 years is not completed” and, therefore, she moved this petition before the Nagpur Bench. 3. The petitioner contends that though she was aware of the minimum 4 wp-5380-10.sxw age requirement of 35 years as on 27th September, 2009 and she was short of 13 days to complete the age of 35 years as on 27th September, 2009, she submitted the application on 15th October, 2009 on attaining the same minimum age, under the legitimate expectations that the respondent No.1 would consider her application form favourably and on technical grounds her application would not be rejected. She further submits that having fulfilled all other eligibility requirements, she reasonably expected that the High Court would take a liberal approach in respect of her age and treat her as eligible keeping in mind that she submitted her application form only after she had crossed the age of 35 years. As per the petitioner there was no basis to fix the cut-off date as 27th September, 2009 for completion of 35 years of age and it was not permissible to insist that she must have completed the said age, and such a decision by the High Court is arbitrary and does not find support from the relevant Rules i.e. the Judges of the Family Court (Recruitment and Service Conditions) Rules, 1990 (for short the Recruitment and Service Rules). The said Rules have been framed by the Governor of Maharashtra in exercise of his powers conferred under Article 309 of the Constitution of India and Section 23 read with Section 4 of the Family Courts Act, 1984 in consultation with the High Court and the condition of minimum 5 wp-5380-10.sxw age of 35 years is flexible in the said Rules and, therefore, it was not permissible for the High Court to incorporate in the advertisement that the candidate must not be less than 35 years of age as on 27th September, 2009. The petitioner also contends that under the Recruitment & Service Rules a candidate applying should not be ordinarily less than 35 years of age and the word “ordinarily” itself indicated that the condition of minimum age will not be rigidly followed and that too in the case of women candidates who are required to be given preference in the selection process under Rule 4(b) of the said Rules. The Family Courts Act does not prescribe the lower age limit for appointment of a person to the post of Judge, Family Court, and the Recruitment & Service Rules do not specify the date on which the applying candidate ought to have completed the age of 35 years. In such a situation the date to complete the minimum age requirement must be the last date on which the applications were required to be submitted. She also claims that if the scheme of the Family Courts Act is read in its right spirit, the requirement of minimum age ought to be considered on the date of actual appointment to the post of Judge, Family Court. Ms. Thorat, the learned Counsel for the petitioner further submitted that even as on the date fixed in the advertisement i.e. 27th September, 2009 the petitioner fell short of 13 days 6 wp-5380-10.sxw and the word used “ordinarily” in the Recruitment & Service Rules must be interpreted with flexibility so as to hold the petitioner eligible, as on the date she submitted the application, she had attained the age of 35 years and the decision of the High Court suffers from hyper technicality and does not take into consideration the true meaning and spirit of the word “ordinarily” used in the Recruitment and Service Rules. She also urged that the requirement of minimum age in the advertisement for completion of minimum age was in conflict with the very same requirement under the Rules and the provisions of the Rules must prevail over the advertisement. In support of these contentions Ms. Thorat relied on the following two decisions of the Supreme Court:- 1.Ashok Kumar Sharma vs. Chander Shekhar & Anr., (1997) 4 SCC 18. 2. Shankar K. Mandal & Ors. vs. State of Bihar & Ors, (2003) 9 SCC 519. 4. In the affidavit in reply filed by the Registrar (Legal and Research) on behalf of the Respondent Nos. 1 and 2, while opposing the petition, it has been submitted that the law laid down by the Supreme Court in Ashok 7 wp-5380-10.sxw Sharma's case (supra) does not support the case of the petitioner and on the contrary it supports the proposition that when the advertisement stated that the candidate was required to have completed 35 years of age on the date of its publication, the said condition cannot be held to be illegal or arbitrary and a person who acquires the prescribed qualifications on the date so fixed in the advertisement will only be eligible candidate. Though under the Recruitment and Service Rules the candidates to be appointed by nomination are required to be “ordinarily” not less than 35 years of age, the minimum age limit would be required to be fixed with reference to a particular date and, therefore, in the advertisement the date of its publication was fixed as the relevant date to decide the eligibility of the candidates and the same does not suffer from any illegality or arbitrariness. In the additional affidavit in reply it has been submitted that the Selection Committee met on 22nd November, 2010 and decided as under:- “At the time of finalisation of the terms and conditions of the Advertisement dated 27.09.2009, it was decided that for being eligible for the post of Judge, Family Court, a candidate must not be less than 35 years of age on the date of advertisement. Though the word “ordinarily” may mean normally and not 8 wp-5380-10.sxw necessarily, after the terms and conditions of the advertisement are finalised, it would not be permissible to reduce the minimum age limit. If such a course is adopted at this stage, it would amount to opening a floodgate for a large number of persons to apply for the post. In that event, practically, the selection process will have to be started afresh by calling applications from all the eligible persons below the age of 35 years, who were earlier kept out of consideration for the post. It may be noted that there are more than 750 candidates, who are found eligible as against 15 vacancies for the post. Thus, the number of eligible candidates is disproportionately high and it would be necessary to shortlist the candidates. Moreover, for the post of Judge, Family Court, a person must be quite matured so that with his experience of life, he would be able to decide the controversy between the parties effectively. In this view of the matter also, it is decided not to reduce the minimum age limit that has been prescribed for the post. In the circumstances, it was decided not to reconsider the earlier decision to fix the minimum age limit as 35 years. Therefore, in 9 wp-5380-10.sxw view of the decision in the case of Ashok Kumar Sharma and others V/s.Chander Shekhar and another (1997) 4 SCC 18, the candidates at Serial number 1 to 6 mentioned in the submission note who had not completed the age of 35 years on the date of advertisement, cannot be held eligible.” 5. From the record placed before us by the High Court administration we have noticed that under Reason No.12 of the advertisement (minimum age requirement) in all six candidates were found to be ineligible and they are as under:- Sr.No. Name of the candidate Date of Birth Age on the date of advertisement Year Month Days 1. Smt.Mayuri Harshal Deshmukh 10.10.1974 34 11 17 2. Smt. Charusheela Sachin Paunikar 02.10.1974 34 11 25 3. Miss Naaz Ruheela 08.10.1974 34 11 19 4. Smt. Anushka Amol Shreshtha 16.11.1974 34 10 11 5. Smt.Sonaly Krishanrao Joshi 07.08.1975 34 1 20 6. Smt. Kranti Tejrao Hiwrale 15.08.1977 32 1 12 5. It is pertinent to note that the candidates at Serial Nos.4 to 6 in the above table did not complete the minimum age of 35 years even on the last date fixed to receive the applications i.e. on 30th October, 2009 and, therefore, they were rightly held to be ineligible. So far as the candidates at Serial Nos. 1 to 3 which include the present petitioner, are concerned, the petitioner fell short of 13 days, 10 wp-5380-10.sxw Smt. Charusheela Sachin Paunikar fell short of 5 days and Ms. Naaz Ruheela fell short of 11 days so as to complete the minimum age of 35 years as on 27th September, 2009. Hence the moot question before us is whether it would be legal, justifiable and in consonance with the spirit of the Recruitment and Service Rules to disqualify all these three candidates when all of them had completed the minimum age requirement either on the date they submitted the applications or within 5 to 13 days from 27th September, 2009, but much before the last date fixed to receive the applications i.e. 30th October, 2009. 6. It is clear from the additional affidavit filed by the Registrar (Legal & Research) that there are already 750 candidates who are found to be eligible to undergo the selection process. The addition of these candidates is not going to make such an impact as to hold that the number of eligible candidates is disproportionately high or it would cause inconvenience to administer the screening/written test. It is also obvious that there are no other candidates who had applied and were disqualified for the reason of being underage. Even otherwise the High Court has reserved its option to administer a screening test, under clause 20 of the advertisement. It was contended by Mr. Karnik, the learned Counsel appearing for the respondent Nos.1 & 2 that there may be many more candidates 11 wp-5380-10.sxw who did not submit the applications keeping in mind that as on 27-9-2009 they did not complete the age of 35 years though they would have completed the said age on 30th October, 2009 or on an earlier date. This is a hyper technical proposition as per the learned Counsel for the petitioner. She submitted that knowing full well that the minimum age of 35 years was to be considered with reference to 27th September, 2009, the above mentioned six candidates submitted their applications hoping that the High Court will be flexible in considering the minimum age requirement and would not adopt a rigid approach, more so when the Recruitment and Service Rules used the word “ordinarily” in regard to the age requirement of 35 years and as per her this is a legitimate expectation and if some others have not submitted the applications despite being aware of the Recruitment & Service Rules it can be reasonably inferred that they were not interested to apply. The fact remains that by an interim order the petitioner was permitted to participate in the process of selection commencing from 2nd May, 2010 and such a benefit ought to be available to the similarly placed candidates i.e. other two applicants mentioned hereinabove namely (1) Smt. Charusheela Sachin Paunikar and Ms. Naaz Ruheela though they have not filed petitions before this Court. 12 wp-5380-10.sxw 7. Let us reproduce Clause 2 of the advertisement published on 27th September, 2009 and Rule 3 of the Recruitment & Service Rules, as under:- a) Advertisement Clause. “2) A candidate must, on the date of advertisement, (I) not be less than 35 years of age; (II)(a) have held a Judicial Office in India or the Office of a Member of a Tribunal or any post under the Union or a State requiring special knowledge of law, at least for seven years; OR (b) have practised as an Advocate in the High Court or in any two or more such Courts in succession, at least for seven years; OR (c ) (i) be a post Graduate in Law with specialisation in Personal Law; OR (ii) have a post Graduate degree in social sciences such as Master of Social Welfare Sociology, Psychology/Philosophy with a degree in law; AND (iii) have at least seven years' experience in the field work/research or of teaching in a Government Department or in a College/University or a 13 wp-5380-10.sxw comparable academic (iv) have seven years' experience in the examination and/or application of Central/State Laws relating to marriage, divorce, maintenance, guardianship, adoption and other family disputes. b) Recruitment & Service Rules: Rule 3 of the Recruitment & Service Rules reads as under:- “3. Appointment to the post of a Judge shall be made either; (A) by transfer of a person holding a post of District Judge, as defined under articles 236(a) of the Constitution of India; Provided that, a person holding the post other than a post of a District Judge, Judge of the City Civil Court, Bombay, Joint District Judge, Chief Judge, Small Causes Court, Bombay or Chief Metropolitan Magistrate shall have standing of not less than five years: Provided further that, a person holding the post other than a post of District Judge, Judge of the City Civil Court, Joint District Judge, Chief Judges, Small Causes Court, Bombay or Chief Metropolitan Magistrate shall not ordinarily be appointed as a Judge of the Family Court, Bombay ; or (B) by nomination from amongst candidates who:- (a) is ordinarily not less than 35 years of age; 14 wp-5380-10.sxw (b) has for at least seven years held a Judicial Office in India or the Office of a Member of a Tribunal or any post under the Union or a State requiring special knowledge of law; or (c ) has for at least seven years been an Advocate of a High Court or of two or more such Courts in succession; or (d)(i) is a post Graduate in Law with specialisation in personal Law; or (ii) has a post Graduate degree in social science such as Master of Social Welfare, Sociology, Psychology/Philosophy with a degree in Law; and (iii) has at least seven years' experience in field work/research or of teaching in a Government Department or in a College/University or a comparable academic institute, with special reference to problem of women and children; or (iv) has seven years' experience in the examination and/or application of Central/State Laws relating to marriage, divorce, maintenance, guardianship, adoption and other family disputes; or 8. Thus Rule 3(B) of the Recruitment & Service Rules states that a candidate by nomination for the post of Judge, Family Court is required to be 15 wp-5380-10.sxw “ordinarily” not less than 35 years of age, as opposed to Clause 2(1) of the advertisement which states that such a candidate must on the date of the advertisement, not be less than 35 years of age. (emphasis supplied). As noted earlier the Recruitment and Service Rules have been framed by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and Section 23 read with Section 4 of the Family Courts Act, 1984, in consultation with the High Court and, therefore, the requirements of eligibility including the minimum age prescribed therein shall undoubtedly prevail over the very same requirement set out in the advertisement. Thus it was not permissible for the respondent Nos. 1 and 2 to state that the candidate must not be less than 35 years of age. The Recruitment and Service Rules have maintained a flexibility regarding the minimum age requirement and avoided to use the word “must” and the Rules have deliberately used the word “ordinarily” and the said word must be given its natural meaning and it cannot be replaced or made otiose/redundant by the High Court administration. As per the dictionary meaning, the word “ordinarily” means “generally” or “as far as possible”. Thus even if the High Court was justified in fixing the cut-off date as 27th September, 2009 for eligibility criteria, so far as the minimum age is concerned there has to be a 16 wp-5380-10.sxw flexibility rather than rigidity and if on the date of the application or as on the last date prescribed to receive the applications if the candidate would meet the requirement of minimum age, there is no reason to adopt a rigid stand to hold such a candidate ineligible. We must also keep in mind that Section 4(4)(b) of the Family Court Act as well as Rule 4(b) of the Recruitment & Service Rules specifically speak of preference being given to women candidates. 9. In the case of Ashok Kumar Sharma (supra) a 3 Judge Bench of the Supreme Court held :- “.....The proposition that where applications are called for prescribing a particular date as the last date for filing the applications the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it........” 17 wp-5380-10.sxw 10. It is pertinent to note that the words used by the Supreme Court are “a particular date as last date for filing the applications” and in the instant case the last date prescribed for filing the application was 30th October, 2009. In our opinion this judgment does not come in the way of the petitioner and the similarly placed two other candidates and on the other hand it supports her submissions. In the subsequent decision in the case of Shankar Nandal (supra) the Supreme Court referred to its earlier judgtments in the case of Ashok Kumar Sharma (supra), Bhupinderpal Singh vs. State of Punjab, (2000) 5 SCC 262 and Jasbir Rani vs. State of Punjab, (2002) 1 SCC 124 and culled out the following principles:- (1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. (2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the 18 wp-5380-10.sxw applications were to be received by the competent authority.” 11. The High Court has rightly relied upon this decision in the case of Shankar K. Mandal (supra) in support of fixing 27th September, 2010 as the cut-off date to meet the eligibility requirements and we cannot find fault with the same. However, when the Recruitment and Service Rules have used the word “ordinarily” in regard to the minimum age requirement, a flexibility is envisaged and it cannot be said that the candidate must on 27th September, 2009, have completed the age of 35 years. We find fault with the word “must” used in the advertisement as it goes contrary to the Recruitment and Service Rules. 12. In the premises, this petition succeeds and we hold that the petitioner as well as Smt. Charusheela Sachin Paunikar and Ms. Naaz Ruheela cannot be held to be ineligible candidates on the ground that they did not complete the age of 35 years as on 27th September, 2009. We hold that they are eligible candidates as they completed the age of 35 years either on the date they submitted the applications or on the last date prescribed to receive their applications i.e. 30th October, 2009. We direct the Respondent No.1 i.e. the 19 wp-5380-10.sxw Registrar General to add the names of the petitioner and Smt. Charusheela Sachin Paunikar and Ms. Naaz Ruheela as eligible candidates to undergo the selection process, along with the other 750 candidates who are found so eligible for the same, for the post of Judge, Family Court. 13. Rule is made absolute accordingly. No order as to costs. (U. D. SALVI, J.) (B. H. MARLAPALLE, J.)