-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3930 OF 2007 1. Smt. Mukulika S. Jawalkar ) aged 42 years, r/o 225, Canal Road, ) Gokulpeth, Nagpur. ) 2. Mrs. Vrushali Vijay Joshi, ) aged 42 years, r/o Sursamgam Apartments, ) Trimurti Nagar, Nagpur. ) 3. Shankar Fakira Rathod, ) aged years, r/o Q. No. 17 Type IV, ) Ravinagar, Govt. Quarters, Civil Lines, ) Nagpur. ) 4. Hemant S. Rahangdale, aged 37 years, ) r/o 100, N.H. Society, Jaiparakash Nagar, ) Khamla, Nagpur. ) 5. Mrs. Sadhana S. Badhiye, aged 44 years, ) r/o 144, Parinay Apartment, Ambazari Till ) Top, Nagpur. ) 6. Kavita S. Nikhade, aged 42 years, ) r/o Giripeth, Nagpur. ) 7. Manoj Kumar Mishra, aged 41 years, ) r/o Malbar Colony, Opp. Lad College, ) Seminary Hills, Nagpur. ) 8. Dayashankar A. Sonawane, aged years, ) R/o Near Gautam Buddha Nagar, Nagpur. ) 9. Rajiv Balgovind Hingnekar, aged about 41 years, ) R/o 18, Datey Layout, Datta Nagar, Near ) Swawlambi Nagar,Nagpur. ) 10. Jyotsana Harihar Shendey ) aged about 43 years, R/o Parvati Nagar, ) -2- Behind Jevan Shikshan High School, Nagpur. )..Petitioners versus 1. The State of Maharashtra, through its ) Secretary, Law and Judiciary Department, ) Mantralaya, Mumbai. ) 2. The High Court of Judicature at Bombay, ) through the Registrar General, Fort, Mumbai. ).. Respondents WITH WRIT PETITION NO. 4644 OF 2007 1. Devanand s/o Bhaskarrao Aradhye, ) age 45 years, Occ. Legal profession, ) r/o Deshpande Galli, Latur. ) 2. Shivkumar s/o Ganpatrao Dige, ) age 35 years,, Occ. Legal profession, ) R/o Kailas Nagar, Latur. )..Petitioners Versus 1. The State of Maharashtra, through its ) Secretary, Law & Judiciary Department, ) Mantralaya, Mumbai. ) (Copy to be served on the Government Pleader, ) High Court of Bombay, Bench at Aurangabad) ) 2. The High Court of Judicature at Bombay, through ) its Registrar General, High Court, Bombay. ) 3. The Honourable the Chief Justice, ) High Court of Judicature at Bombay ).. Respondents WITH -3- WRIT PETITION NO. 4645 OF 2007 1. Ranjana d/o Dattatray Reddy, age 46 years ) Occupation. Advocate, R/o Tirupati Park, ) G-3, N-4, CIDCO, Aurangabad. ) 2. Veena d/o Madhukarrao Potrekar, ) age 41 years, Occupation. Advocate, ) r/o Ausargaun, Dist. Nanded. ) 3. Sunita d/o Naganath Supare, ) Age 38 years, occupation Advocate, R/o Vasant ) Nagar, Nanded, Tq. Dist. Nanded. ) 4. Archana d/o Shrikrishna Singh, age 36 years, ) Age 36 years, Occupation. Advocate, R/o Kailash ) Nagar, Nanded, Tq. & Dist. Nanded. ) 5. Shivaji s/o Sarjerao Nimbalkar, age 45 years, ) Occupation: A Public Prosecutor, ) R/o Snehnagar, Aurangabad ) 6. Sunil s/o Prabhudev Sonpawale, aged 42 years, ) Occupation: Advocate, R/o 235, Ulkanagari, ) Shubhahari Apartment, Sahayog Nagar, ) Garkheda Parisar, Aurangabad. ) 7. Sanghmitra d/o Bansidhar Wadmare, ) Age 46 years, Occ. Advocate, ) R/o 17, Pragati Colony, Makai Gate, Aurangabad )..Petitioners Versus 1. The Registrar General, High Court, ) Bombay-400 032. ) 2. The State of Maharashtra, through Law and ) Judiciary Department, Mantralaya, Mumbai. ) 3. The Hon'ble Chief Justice, ) High Court, Bombay at Mumbai. ).. Respondents -4- Mr. Shrihari G. Aney, Senior Advocate, instructed by Mr. Amit Karkhanis, for the petitioners in Writ Petition No. 3930 of 2007. Mr. Jagdish Reddy, instructed by Mr. S.B. Talekar, for the petitioners in Writ Petition No. 4644 of 2007. None for the petitioners in Writ Petition No. 4645 of 2007. Mr. A.A. Kumbhakoni, Associate Advocate General, with Mr. R.D. Rane, Government Pleader, for respondents in all petitions. CORAM: SWATANTER KUMAR, C.J. & SMT. RANJANA DESAI, J. Judgment reserved on : July 04, 2007 Judgment delivered on: July 19, 2007 JUDGMENT (Per Swatanter Kumar, C.J.): `Judge' is a generic term. The other terms like umpire, arbiter and arbitrator are only species of judge. A judge determines all matters of disputes and pronounces what is law, now as well as what will be law for the future, and acts under the appointment of the Government. Pollock C.B. Ex parte Davis (1857), 5 W.R.523 said that “judges are philologists of the highest orders”. They are not mere administrative officers of the Government but represent the State to administer justice. His functions are to judge a cause and conduct trial according to the legal form and norms and give relief to the party. He does nothing for his own judgment or from a dictate of private will but -5- he will pronounce according to the law and justice. Judex debet judicare secundum allegata et probata, is a maxim which controls the functioning of a judge. The framers of the Constitution of India, to achieve the goal, stated in the preamble of the Constitution of India in regard to justice and equality incorporated in, amongst others, Articles 233 and 235 and vested control in the High Courts over the subordinate courts. The Supreme Court clearly stated that judges, at whatever level they may be, represent the State and its subordinates unlike bureaucrats or members in other services. Judges were said to be discharging sovereign functions in exercise of their judicial power and power in contra distinction to the public service. In a largest democracy of the world, governed by rule of law under the written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and protect the people from any violation of law and grant them justice. The concept of judicial independence, being a wider concept, indicates independent functioning of every judge, free of fear, interference and breaches. Judiciary, was said to be composed of individual persons to work primarily on their own, free of restrictions, but in consonance with law. The Supreme Court in 1997(6) SCC 339 held as under: -6- “ The Constitution of India has delineated distribution of sovereign power between the Legislature, the Executive and the Judiciary. The judicial services is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise sovereign judicial power of the State. They are holders of public offices in the same way as the members of the Council of Ministers and the members of the Legislature. It is an office of public trust and in Indian democracy, the Executive, the Legislature and the Judiciary constitute the three pillars of the State. Three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. The Judges, at whatever level they may be, represent the State and its authority, unlike the bureaucracy or the members of the other service.” 2. Emphasising importance and responsibility of the trial judge, the court described that the trial judge is the kingpin in the hierarchical system of administration of justice, he directly comes in contact with the litigants during the day to day proceedings and dispensation of justice. Faith in judiciary are the facets of the judicial administration to which they contributed substantially. It is essential to maintain faith of common masses in the judiciary, failing which it would lose its respect and esteem. Law is meant to meet the ends of justice. The Supreme Court said that the conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough and courteous, patient, punctual, just, impartial, sans political or partisan influences; he should administer justice according to law and deal with -7- his appointment as a pubic trust; he should not allow other affairs or his private interests to interference with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity. If he tips the scales of justice, its ripping effect would be disastrous and deleterious. 3. If that be the ethos of the post of District Judge, correspondingly should be the higher parameters for selection to that post. Parameters and criteria should be stringent for selection to that post. Of course, these parameters must be in conformity to the basic rule of law. Greater is the obligation upon the selection authorities to calibrate or drive a balance between the dignity of the post and the standards for selection. Merit and merit alone can be directional in proper selection and would be the hallmark to a just and fair process of selection. Within the scope of Rules and Regulations governing the subject, the selection process needs to be free from any misdemeanour. 4. With an intent to keep these standards, the State of Maharashtra, in consultation with the respondent-High Court, issued an -8- advertisement on 3rd March, 2007, inviting applications for 18 existing and three probable vacancies for the post of District Judges in the judicial service of the State of Maharashtra. Various terms and conditions, which the applicants were required to satisfy, were stated in the said advertisement itself. The candidates were informed that they would have to appear for a competitive written examination which shall not be of less than two hours' duration with 200 marks whereafter they shall be called for viva-voce examination carrying 50 marks, provided they secure not less than 50% of marks at the written examination. Of course, for the Scheduled Caste/Scheduled Tribe candidates, the condition of minimum marks was reducible to 45% of marks. The candidates were required to fill up the application forms and submit the same for which the last date was 30th March, 2007. We may notice at this stage that the application form specified the instructions of which the candidate was expected to take note of and under clause 13 the candidate was to specify the marks obtained by him/her in the examination of law, while under clause 17 they were required to give full particulars of total duration of practice, the amount of professional net earnings during last three years and whether they paid income tax thereupon and was specifically required to annex income tax returns of previous three years. For these 21 posts, 1129 -9- applications were received and the criteria adopted for shortlisting the candidates was that only those candidates who have secured 55% of marks in their law examination and had filed income-tax returns would be permitted to take the written examination and go through the selection process, subject to the terms and conditions stated in the advertisement and criteria adopted by the respondents. 5. The legality and correctness of this simple criteria and process for selection was questioned by 24 petitioners (persons who had submitted their applications in furtherance to the advertisement) by filing four different writ petitions, inter alia, but primarily on the grounds (a) that the respondents had no jurisdiction to fix any shortlisting criteria, the applicants should have been permitted to take the written examination and the action thus is contrary to the terms of the advertisement; (b) the criteria of shortlisting of 55 % of marks in LL.B. as well as income tax paid have no nexus to the object of a selection and is unjustifiable in law, and (c ) that the advertisement and submission of the applications by the applicants had given them a fundamental right to the post in question. This right could not be taken away. The shortlisting and process of selection has thus denied them equality and has not been uniformly and reasonably applied to the -10- candidates and violates Articles 14 and 16 of the Constitution of India. They, in fact, are not “reasonable norms”. 6. Before we proceed to examine the merit or otherwise of the contentions raised before us, we may mention that in Civil Writ Petition No. 3927 of 2007, titled as Mrs.Anneta Kiran Kataria and others vs. Secretary to the Government, Ministry of Law & Judiciary, Mantralaya and others, where five petitioners had questioned the validity and adoption of shortlisting criteria in that petition. On an interim motion, the petitioners had prayed for holding of the written examination as well as the process of selection, a Division Bench of this Court passed a detailed order on 18th May, 2007, declining the relief. The order reads as under:- “ Heard Mr.Vechalekar, the learned counsel for the petitioners in Writ Petition No. 3927 of 2007 and ```Mrs. Chandekar, the learned Counsel for the Petitioners in Writ Petition No. 3930 of 2007 (transferred petition). 2. These petitions challenge the selection process adopted by the High Court of Bombay for filling up the post of District Judge. The said process has been challenged, inter alia, on various grounds urged in the petition, but primarily on the ground that the method of short listing adopted by the High Court is unconstitutional and arbitrary. The brief facts can be stated thus. 3. The High Court of Bombay issued an -11- advertisement dated 03.03.2007 calling applications for the post of District Judge, to be filled in by nomination. The posts to be filled in are from the quota of direct recruits. There are 18 vacancies at present, which were advertised along with 3 other vacancies, which are likely to occur in the current year. The said advertisement inter- alia sets out the terms and conditions for selection. Clause 10 of the said terms and conditions is relevant for the purposes of the present petition and is reproduced herein under: “ High Court reserves its right of short-listing at the time of scrutiny of applications by applying uniform and reasonable norms.” 4. Pursuant to the said advertisement in all 1129 applications are received by the High Court. The High Court has in view of the directions of the Apex Court in the Judges' case for filling up the posts expeditiously has constituted a Committee for monitoring and overseeing the examination to be conducted. Looking to the number of applications received, the Committee was of the view that only those candidates who have secured 55% or above marks at the LL.B. Examination and pay income tax may be called for the written examination. It appears that the matter was then placed before the Hon'ble the Chief Justice who was pleased to direct to place the matter before the Hon'ble Full House of the High Court for approval. The Full House of the High Court in its meeting dated 29.04.2005 unanimously approved the said criteria for short-listing as recommended by the Committee. 5. On the applications of the said criteria, 170 candidates were short-listed for the written examination. The list of the said candidates was displayed on the web site from 30.04.2007. The petitioners in both the petitions being aggrieved by the fact that they were not called for the said written examination, have filed the instant petitions. 6. It is the submission of both the learned counsel for the petitioners that the High Court should be directed -12- to abide by the representation made in clause 6 that all eligible candidates will have to appear for written examination that would be held for the purposes of carrying out the said selection. The learned counsel further submitted that short-listing, if at all, can only be after the written examination and not prior to that. The learned counsel further submitted that the High Court having not disclosed the short-listing criteria at the threshold are now estopped from applying the same. The learned counsel submitted that the petitioners, in both the petitions, are all highly qualified though some of them may not be having 35% of marks at the LL.B. Examination or some may not be paying income tax. The method of short-listing, according to the learned counsel deprives the petitioners their right to participate in the said selection process and is, therefore, violative of Articles 14 and 16 of the Constitution of India. 7. On the other hand, Mr. Rane, the learned Govt. Pleader, submits that looking to the post concerned which is of the District Judge, the High Court on its administrative side has fixed a very rational criteria looking to the number of applications received and the number of posts available. Mr. Rane submitted that the said criteria has been adopted uniformly and only on the application of the said criteria the short listing has been done. Mr. Rane relies upon the affidavit filed by Mr. Hemant Sampat, Registrar (Legal) on behalf of the Respondents, which affidavit, inter alia, sets out the factual position as regards the number of applications received etc. and the manner in which the short-listing criteria has been fixed. Mr. Rane also relies upon the judgments of the Apex Court in the matter of Government of Andhra Pradesh vs. P. Dilip Kumar [1993 (2) SCC 10], M.P. Public Service Commission vs. Navnit Kumar Potdar, [ 1994 (6) SCC 293 ] Union of India vs. Sundararaman and others [ 1997 (4) SCC 664] in support of his contention that short-listing is an accepted method while carrying out any selection.. 8. We have given our anxious consideration to the rival contentions. It is well settled by catena of judgments -13- of the Apex Court that short listing is an accepted method which can be adopted by the authorities making appointments to restrict the zone of consideration. The learned counsel for the petitioners contends that in the judgments cited by Mr. Rane the short-listing is as regards the persons to be called for the viva-voce and not for the written examination. The question in our view is not at what stage the short-listing can be done, but the principle laid down in the said judgments. The judgments cited by Mr. Rane would therefore be applicable in the instant case. 9. The contention of the Petitioners that the High Court was bound by the advertisement, and therefore, ought to have allowed all the applicants to appear for the examination in our view is fallacious in the teeth of clause 10 of the terms and conditions, which explicitly represents to the applicants that the High Court reserves its right of shortlisting at the time of scrutiny of applications by applying uniform and reasonable norms. The said condition circumscribes the other conditions. The petitioners contention that the criteria fixed having not been disclosed, cannot be relied upon is misfounded. The criteria for short-listing cannot be predetermined and has to be evolved looking to the number of applications received and the number of vacancies available. In our view, the criteria of 55% marks at the LL.B. And payment of Income Tax is a rational criteria, looking to the post involved i.e. of the District Judge and had, therefore, nexus with the object sought to be achieved that is to select the most meritorious from the applicants. We, therefore, do not find anything arbitrary or unconstitutional about the same. 10. Mr. Rane also brings to our notice an order, dated 17.05.2007, passed by the learned Vacation Judge at Aurangabad in a petition involving the same issue. The learned Vacation Judge at Aurangabad has refused interim reliefs. 11. The written examination is to be held on 21.05.2007. In the above view of the matter, we are of the -14- opinion that prima facie no case for grant of any ad-interim or interim relief is made out by the Petitioners. 12. The petitions to be posted for admission in the week commencing from 18.06.2007.” 7. When the above petition came up for hearing before the regular Bench, it was dismissed as withdrawn at the request of the petitioners vide order of the Court dated July 04, 2007. 8. Besides the above order of the Division Bench, in Civil Writ Petition No. 2728 of 2007, the petitioners had prayed for grant of ex-parte injunction/stay of the process of selection at the Aurangabad Bench which prayer was also refused by the learned Vacation Judge vide order dated 17th May, 2007, which reads as under: “Heard. 2. The High Court at Bombay issued an advertisement dated 3.3.2007 calling applications for the post of District Judge to be filled in by nominations. There are eighteen (18) vacancies to be filled up by direct recruitment and three (3) are likely to occur in the current year. A large number of applications were received and, therefore, short listing method is adopted by the High Court. The High Court decided to permit only those candidates, who have secured 55% or above marks in the L.B. Examination and have filed Income Tax Returns. This criteria for short listing is the subject matter of challenge in these two writ petitions. -15- 3. Interim relief is sought by the petitioners. It is argued by the learned counsel Mr. Talekar and learned counsel Mr. Deshmukh that the criteria of short listing is arbitrary, unconstitutional and unreasonable. They would submit that the short listing method is improper and an opportunity of the applicants cannot be scuttled at the stage of appearance to compete in the examinations to be held. 4. Mr. Talekar, would strenuously argue that the classification for short listing is without reasonable nexus with the object to be achieved inasmuch as the object is to be pick up only the talented candidates. He would submit that only talented persons may get through the competitive examinations irrespective of the marks they have obtained at the LL.B. Level. He would further submit that the recruitment Rules do not provide for such short listing. He further point out from the Judgment reported in “All India Judges' Association and others vs. Union of India and others (2002) 4 SCC 247 that no such short listing is provided for in respect of the posts of Civil Judge (J.D.) and J.M.F.C. He would point out that 50% of the promotional posts of District Judges are required to be filled in through the said channel. According to Mr. Talekar, when 50% of such promotional posts can be occupied by those, who do not require fulfillment of such criteria, it would be irrational and discriminatory to provide for separate yardstick only for the purpose of short listing in respect of the direct recruitment. In other words, he would submit that there is discrimination in respect of the criteria provided for two channels to fill in the post of District Judge. He would further submit that the nature of five years course provided by various Universities is different from the erstwhile three years course and that it causes lot of difference in the standards of obtaining the marks. He would further submit that the screening tests could be provided as laid down in State of Punjab and others vs. Manjit Singh and others, (2003) 11 SCC 559 for the purpose of shortlisting but short listing at the initial stage and then providing for the competitive written examinations is illogical. -16- 5. Mr. Deshmukh, the learned counsel appearing for the other petitioners would submit that the short listing by itself is unconstitutional and illegal because it has objective of changing the initial criteria so fixed to become eligible for the post of District Judge. He would submit that such criteria cannot be subsequently changed after the advertisement is published. He would point out that though right of short listing is reserved by the High Court yet it does not give any legal sanctity to the methodology adopted while short listing on the ground of 55% of the marks as criteria as eligibility to appear for the competitive examination. He would further submit that the petitioners may be allowed to compete with the others as an interim measure and their results may be withheld till disposal of the petitions. 6. Mr. P.M. Shah, the learned senior counsel would submit that the short listing is one of the method followed for eliminating the candidates when the large number of applications are received. He would point out that the uniform yardstick is being applied without discrimination. He would further submit that mere eligibility of the applicants do not give any vested right to them to appear for the competitive examination. He would submit that when there are only 21 posts to be filled in by direct recruitment