1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 3118 OF 2008 WITH O.S. WRIT PETITION NO.2562 OF 2008 WITH WRIT PETITION NO. 4475 OF 2008 WITH WRIT PETITION NO.4589 OF 2008 WITH WRIT PETITION NO. 4652 OF 2008 WITH WRIT PETITION NO. 4782 OF 2008 WP NO.3118 OF 2008 Dipti Dipak Kolapkar, ) Age about 23 years, ) Occupation – Practicing Advocate, ) Residing at C/o.R. A. Harpale, ) A-1103, Rohan Garima, ) Shivaji Housing Society, ) S.B. Road, Pune – 411 016. ).Petitioner Vs. 1. The Maharashtra Public Service ) Commission, Bank of India Building, ) Third Floor, Mahatma Gandhi Road, ) Hutatma Chowk, Mumbai – 400 001. ) 2. State of Maharashtra, ) 2 through Government Pleader, ) Appellate Side (Writ Cell), Room No.4, ) PWD Annex Building, High Court, ) Mumbai – 400 032. )..Respondents O.S. WP NO. 2562 OF 2008 1. Rajeshwer S/o. Ganesh Panchal, ) Aged 27 yrs., Occ: advocacy. ) Permanent resident of M Gandhi Nagar, ) Bhokar Dist. Nanded, ) presently at R No.515, MLA Hostel, ) behind Mantralaya, Mumbai. ) 2. Jitendra s/o. Pandharinath Patil, ) Aged 27, Occ – advocacy. ) permanent residet of at post Nimgul, ) Tq – Sindhkheda, Dist – Dhule, ) presently at R. No.A-56, ) Manora MLA Hostel, Narima Point, ) Mumbai. ).... Petitioners Versus 1. Maharashtra Public Service Commission, ) through its Chairman, having his office ) at 4th Floor, Bank of India Building, ) Hutatma Chowk, Mumbai. ) 2. State of Maharashtra, ) through the Mantralaya, Mumbai. ).Respondents 3 WP NO. 4475 OF 2008 Syedullah S/o Khaleelullah Khan, ) Age 31 years, Occ: Legal Practitioner, ) R/o. Purna. Tq. Purna, Dist. Parbhani. ). Petitioner Versus 1. Maharashtra Public Service Commission, ) Through its Secretary, ) Bank of India Building, 3rd Floor, ) Mahatma Gandhi Marg, ) Hutatma Chowk, Mumbai – 400 001. ) 2. State of Maharashtra, ) Through Principal Secretary, ) Law & Judiciary Department, ) Secretariat, Mumbai – 400 032. ). Respondents WP No.4589 OF 2008 1. The District Bar Association, ) Aurangabad, Through its President, ) Avinash S/o. Suryakantrao Deshpande, ) Age: 42 years, Occ: Advocate, ) R/o. Shardaashram Colony, ) Paithangate, Aurangabad. ) 2. Kishor S/o. Manikrao Munde, ) Age : 26 years, Occ: Advocate, ) R/o. L.N. Kode Niwas, Saraswati Nagar, ) Aurangabad. ) 3. Arjun S/o. Namdeorao Neharkar, ) Age 26 years, Occ: Advocate, ) 4 R/o. Nageshwarwadi, Aurangabad. ) 4. Satish S/o. Machindra Chavan, ) Age : 25 years, Occ: Advocate, ) R/o. F-27, Shivshankar Colony, ) Aurangabad. ) 5. Mangesh S/o. Mahesh Tamne, ) Age : 25 years, Occ: Advocate, ) r/o. Ulkanagari, Aurangabad. ) 6. Badrivishal S/o. Rambilas Loya, ) Age : 30 years, Occ: Advocate, ) R/o. Seven Hill, Aurangabad. ) 7. Samir S/o. Madan Bedre, ) Age : 32 years, Occ: Advocate, ) R/o. Manogeet, Sainagar, Aurangabad. )..Petitioners Vs. 1. The State of Maharashtra, ) Through the Secretary, ) Law and Judiciary Department, ) Mantralaya, Mumbai – 32. ) (Copy to be served on Government ) Pleader, High Court of Judicature of ) Bombay Bench at Aurangabad.) ) 2. The Maharashtra Public Service ) Commission, Bank of India Building, ) Fort, Mumbai, Through its Secretary. )..Respondents WP NO. 4652 OF 2008 1. Adv. Sakalesh S/o. Vasudeorao Pimple, ) 5 Age 34 years, Occ : Advocate, ) R/o. Indraprashtra Dattanagar, ) Nilanga, District – Latur. ) 2. Pravin S/o. Prakash Deshmane, ) Age 29 years, Occ; Service, ) R/o. Teachers' Colony,Babhulgaon Road, ) Latur, District – Latur. ).Petitioners Versus 1. The State of Maharashtra, ) through its Secretary, ) Law and Judiciary Department, ) Mantralaya, Mumbai. ) 2. The Maharashtra Public Service ) Commission, Bank of India Building, ) Fort, Mumbai – 400 001. ) through its Secretary. ).. Respondents WP NO.4782 OF 2008 1. Vilassingh s/o. Narayansingh Thakur, ) Age : 25 years, Occ: Legal Practitioner, ) R/o. Vidhya Nagar, “Thakur Niwas”, ) Akola Road, Hingoli, Taluka and ) District : Hingoli. ) 2. Ketankumar s/o. Uttamrao Telgaonkar, ) Age 25 years, Occ: Legal Practitioner, ) R/o. A-4, Kailas Building, Om Nagar, ) Old Jalna, Taluka and District: Jalna. ) 6 3. Ishwar s/o. Kantrao Suryawanshi, ) Age 28 years, Occ: Legal Practitioner, ) R/o. Deshpande galli, Tanaji Chowk, ) Taluka and District : Latur. ).. Petitioners Versus 1. The State of Maharashtra, ) through its Secretary, ) Law and Judiciary Department, ) Mantralaya, Mumbai. ) 2. The Maharashtra Public Service ) Commission, through its ) Deputy Secretary, Bank of India Building,) 3rd Floor, M.G. Road, Hutatma Chowk, ) Mumbai – 400 001. ) 3. The High Court of Bombay, ) through its Registrar General, ) Fort, Mumbai. ).. Respondents -- Shri V.A. Sugdare for the Petitioners in WP No.4589 of 2008. Ms Dipti D. Kolapkar, Petitioner-in-person in WP No.3118 of 2008. Shri Syedullah K. Khan, Petitioner-in-person in WP No.4475 of 2008. Shri U.P. Warunjikar along with Shri Nitesh Bhutekar for the Petitioners in AS WP No.4652 of 2008. Shri N.E. Deshmukh for the Petitioners in WP No.4782 of 2008. Shri V.S. Masurkar, Government Pleader, for State. Shri A.G. Damle for Respodent No.2. -- 7 CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J JUDGMENT RESERVED ON : 13TH APRIL, 2009. JUDGMENT PRONOUNCED ON : 7TH MAY, 2009 JUDGMENT : ( PER SWATANTER KUMAR, CJ) Principally a common ground of challenge raised by the Petitioners, in all these Writ Petitions, is whether Maharashtra Public Service Commission ( hereinafter referred to as “Commission” ) could introduce the element of minimum marks to be obtained in the written examination as qualifying marks for being called for viva-voce test subsequent to issuance of advertisement issued by the said Commission for the post of Civil Judge, Junior Division, and Judicial Magistrate, First Class. According to the Petitioners, the Commission adopted a criteria different than the one advertised and the Rules of the examination were changed midway. Thus, they pray for quashing and setting 8 aside the entire selection process of the said examination which was conducted in furtherance to the advertisement dated 4th July, 2007 and also pray for issuance of other directions. To substantiate their reliefs claimed, the Petitioners also rely upon the principles of reasonable expectancy and promissory estoppal. 2. Reference to the basic facts giving rise to this bunch of Writ Petitions is necessary. While examining the factual matrix, we are not referring to the facts stated in each of the cases. Suffice it to refer to the allegations and the grounds stated in Writ Petition Nos. 3118 of 2008, 4652 of 2008, 4675 of 2008 and 4782 of 2008. 3. The Petitioners are law graduates who completed their LL.B. Examination during the years 2005-2007 and claim to have secured reasonably good marks in their LL.B. Examination. Thereafter, they enrolled themselves as Advocates with the Bar Council of Maharashtra and Goa and are practicing Advocates. On 4th July, 2007, the Deputy Secretary of the Commission issued an advertisement inviting applications for filling up 150 vacancies to the post of Civil Judge, Junior Division and Judicial Magistrate, First 9 Class. The last date for submission of the applications was 3rd August, 2007 and the competitive examination was to be conducted on 6th October, 2007. Corrigendum to the said advertisement dated 4th July, 2007 was issued by the Commission on 25th July, 2007 clarifying the number of posts which was increased by 175. In other words, according to the Petitioners, 325 posts were available for recruitment for which the examination was to be conducted. However, the date of the competitive examination was preponed from 6th October, 2007 to 22nd September, 2007. According to the Petitioners, they fulfilled all the qualifications prescribed for the said test in terms of Bombay Judicial Service Recruitment Rules, 1956, ( hereinafter referred to as the “Rules”). The Petitioners allege that result of the competitive examination was unduly delayed and the same was declared on 13th March, 2008. In the said result, it was declared that only 163 candidates had qualified for oral examination. The roll numbers of the Petitioners did not appear in the list of qualified candidates and the Petitioners could not ascertain whether or not they had obtained cut-off marks as fixed by the Commission. It is further case of the Petitioners that Clause 2.6.3.1 of the prospectus published by the Commission provided for 10 the examination to be held in two stages, 200 marks for written examination and 60 marks for viva-voce test. Clause 2.6.6.1 provides that minimum cut-off line fixed would be such that the candidates available for viva-voce test would be two to three times of the total number of posts (vacancies) and the candidates who qualified as per the cut-off line alone would be called for interview. There being 325 posts available, the number of persons who would have to be qualified for interview thus would have been 650 to 975. The Commission' s action in calling only 163 applicants on the basis of a cut-off line or qualifying marks is unjust and that the applicants who had secured minimum 50% marks in the written examination had been called for interview. 4. On this premise, according to the Petitioners, fixation of condition of obtaining 50% marks in the written examination is violative of Article 14 of the Constitution of India. The Petitioners came to know from the result sheets that they were required to obtain 50% marks in each subject. This condition was introduced at a subsequent stage which is impermissible. In any case, without prejudice to the above, the condition of 50% marks in each paper 11 was not prescribed by any Competent Authority at any point of time and as such the same could not have been in force against the applicants who have taken the 2007 examination. 5. In Writ Petition Nos.4782 of 2008, it is averred that the Petitioners obtained 122, 104 and 110 marks, respectively, out of 200 marks but they were shown as not qualified. The result of such change after holding of the written examination is that the petitioners have been denied consideration for appointment to the said posts. The cut-off marks were required to be such that they would provide at least three times of the number of candidates of the existing vacancies, to be filled up, the fixation of cut-off line in individual papers is contrary to the prescription stated in the prospectus. This action of the Respondents is entirely arbitrary. In Writ Petition No.4782 of 2008 and 4475 of 2008, the Petitioners claim that though they had obtained 50% marks in written examination, they were not called for interview on the ground that 50% marks have to be obtained in each paper and not in aggregate. 12 6. Separate reply affidavits have been filed on behalf of Respondent Nos.1 and 2, respectively. According to the Commission, 150 posts of Civil Judge, Junior Division and Judicial Magistrate, First Class were advertised on 4th July 2007 and thereafter a Corrigendum for additional 175 posts was also issued on 25th July 2007. In order to effectuate the directions issued by the Apex Court in the case of All India Judges’ Association (III) V. Union of India, (2002)4 SCC 247 in respect of Shetty Commission and in the case of Malik Majhar Sultan v. U.P. Public Service Commission, JT 2007(3) SC : (2006) 9 SCC 507, the Government of Maharashtra vide its letter dated 14th August 2007 requested the Commission to follow the procedure for the selection in question. The following extract of the said letter has been referred to in the reply :- “The report of the Shetty Commission has been approved by the Apex Court in All India Judges Case. In the draft recruitment rules prepared by the Shetty Commission there exist recruitment of candidate securing not less than 60% marks before he qualifies for viva voce examination. This is to ensure merit based selection. In the proposed draft rules received from the High Court and in turn which were sent to you, there exist similar provision of holding a written examination 13 and further provision to the effect that to qualify for viva voce examination, one has to secure not less than 50% marks. It is, therefore, expected that the provision, of candidate securing not less than 50% marks for being qualified for viva voce examination, will have to be enforced despite the fact that rules containing such provision are yet to be notified.” 7. Vide letter No.CJM-2005/1794(282)/III dated 16th November 2007 the State also clarified that securing 50% marks was essential to be qualified for viva voce. Though, according to the Commission no specific Rules had been framed, the recommendations of the Shetty Commission are being followed in letter and spirit. The revised Draft Recruitment Rules for these posts were submitted to the Commission for its opinion by the Government. These Rules were approved by the Full House of the High Court and the Commission furnished its opinion vide its letter dated 29th November 2007. However, the Draft Rules were not finalized till declaration of the result. The 1956 Rules do not specifically provide for conducting of a written examination and in fact the Rules are entirely silent as regards written examination. The rules only refer to an interview and this procedure was being 14 followed till 1984 when screening test was introduced keeping in view the large number of applications and difficulties faced in preparing the merit list. In the year 2003, the Commission started two tier competitive examination for the Civil Judges, Civil Judge, Junior Division and Judicial Magistrate, First Class, a written test followed by interview. The Commission also followed the procedure of evaluation, moderation and cross moderation which had been established by it vide order dated 13th February 2004 which was in relation to valuation of answer sheets. Nearly 7298 candidates appeared for the written examination of 2007 and out of them only 163 candidates could get minimum 50% marks so only 163 candidates qualified for the interview which was conducted by the Committee consisting of one Hon'ble High Court Judge and one Member of the Commission. The cut off line of 50% marks in the written examination was introduced as per acceptance and directions issued by the Supreme Court on the basis of the recommendations of the Shetty Commission Report and in fact it was 10% lower than the cut off recommended by the Shetty Commission report and it was so kept also on the basis of Government letter dated 14th August 2007, 8th November 2007 and 15 16th November 2007 in which the High Court had also been consulted. The information which the Petitioners had asked for vide their letter dated 13th February 2008 under the Right to Information Act was partly replied to vide letter dated 9th May 2008. In the affidavit filed on behalf of Respondent Nos.2 and 3, in addition to the above it has been averred that the Draft Maharashtra Judicial Rules, 2007 were drafted and accepted by the High Court which thereby had fixed the criteria of securing 50% marks in written examination for being qualified for viva voce test. As meritorious candidates are to be appointed to the post of Judicial Officers, the Supreme Court on the recommendations of Shetty Commission had directed that those candidates should be interviewed who had got 60% or more marks. Rule 6 of the Draft Rules have been referred to, which reads as under :- “Rule 6 Competitive Examination - (2)(a) The competitive examination for recruitment of Civil Judges shall consists of - (i) a written examination of xxxxxx (details to be specified) 16 (ii) Viva voce examination with less than 1/3 of the marks for the written examination. (b) All candidates who obtain sixty percent or more marks or corresponding grade in the written examination shall be eligible for viva voce examination. Provided that Scheduled Caste/ Scheduled Tribe candidates who obtain fifty percent or more marks or corresponding grade in the written examination shall be eligible for the viva voce examination; (c) Selection of candidates shall be made on the basis of cumulative grade value obtained in the written and viva voce examination.” The Draft Rules of 2007 which are on the lines of Shetty Commission recommendations as accepted by the Supreme Court and which were ultimately adopted and confirmed as Maharashtra Judicial Service Rules, 2008, notified on 25th August 2008, make such a prescriptions which not only provide this criteria but even states the requirement of scoring/securing 50% or more marks in each subject in the written examination to qualify for viva voce. It is stated that thus 163 candidates were the ones who had secured 50% or more marks in each subject and were treated as eligible for viva voce. 17 8. A preliminary objection has also been taken by the Respondents as to the maintainability of the Writ Petitions on the ground that the successful candidates have not been joined as parties though the Writ Petition has been filed only after the declaration of the result. Furthermore, the Petitioners are not entitled to any relief on merits as merit is the sole criteria for selection to these posts which is in conformity with the Rules. 9. According to the Petitioners, the Draft Rules and for that matter any subsequent criteria adopted to the advertisement, and in any case after holding of the examination, different than the one stated earlier cannot be applied and particularly to the disadvantage of the Petitioners and as such the entire selection is liable to be quashed and they are entitled to pray for issuance of a fresh merit list. However, in Writ Petition No. 4652 of 2008 the Petitioner has not made such a prayer and has confined his relief t the extent that the Respondent particularly the Commission should be directed to call the Petitioner for interview without applying the eligibility criteria for viva voce being 50% marks in each of the 18 subjects. They also contend that there was no occasion for applying the Shetty Commission recommendations to the present selection. The Respondents, on the other hand, contend that the selection has been conducted strictly in accordance with law in force and the Petitioners even having participated in the entire selection process now cannot turn back to challenge the process of selection. The condition of 50% has been enforced and applied equally to all and no prejudice has been caused to any candidate keeping in view that merit is the criteria for appointment to such posts. 10. From the above narrated facts, it is clear that only Rules that were notified in force with regard to appointment to the posts of Civil Judge, Junior Division and Judicial Magistrate, First Class were the Bombay Judicial Services Recruitment Rules, 1956 as modified upto 25th July 2003. Under these Rules, “service” means the Judicial Service of the State of Maharashtra which included both the levels of services, high judicial services as well as Civil Judges, Senior and Junior Divisions. Constitution of Service has been provided under Rule 3(1) as Junior Branch and Senior Branch. The Junior Branch was to consist of Judges of the Small Causes Courts 19 at Bombay and at places other than Bombay, Civil Judges (Senior Division), Chief Judicial Magistrate and Additional Chief Judicial Magistrate. Rule 4 of these Rules deals with appointment to the post of Civil Judges, Junior Division and Judicial Magistrate, First Class and it provides as follows :- “4. METHOD OF RECRUITMENT TO THE JUNIOR BRANCH:- 3(A) Metropolitan Magistrates, Juvenile Court, Bombay:- (a) Appointment to these posts shall be made by nomination from amongst the candidates who - (i) are ordinarily not more than forty years of age; (ii) have been practicing as Pleader, Attorneys or Advocates in the High Court of Bombay or Courts Subordinates thereto, for the period not less than five years; Provided that, preference may be given to the candidates possessing - (i) training and experience in social service, Child Welfare and Psychology or experience of work in Children Home or similar institution, or both; 20 (ii) diploma in Social Science, Child Delinquency or Child Psychology; (iii) Practical experience as probation Officer or Inspector of Certified Schools; Provided further than, the age limit may be relaxed in favour of candidates having exceptions qualifications; (b) a person appointed to the post shall be on probation for a period of one year; (c) a person appointed to the post shall be required to pass language examination according to the rules prescribed in that behalf. (d) Appointment by nomination shall be made by the Governor in consultation with the Commission. Provided that, the Commission shall invite a representative of the High Court to be present at the interview held by the Commission for this purpose and the representative so present may take part in the deliberation of the Commission but shall not be entitled to vote. (4) (i) Appointment to the posts of Civil Judges (Junior Division) and Judicial Magistrate of the First Class shall be made by nomination from - (a) members of the Bar, or (b) in special circumstances by re-employment of retired Civil Judges (Junior Division) or (c) members of the ministerial staff of the High Court or any Court subordinates to it, or 21 (d) members of the staff working as Legal Assistant in the Legal Section of the Law and Judiciary Department of Mantralaya, or (e) member of the ministerial staff of office of the Government Pleaders in the High Court, City Civil Court and District Courts. (ii) The appointment shall be made by the Governor in consultation with the Commission except that it shall not be necessary to consult the Commission in re-employing retired Civil Judges (Junior Division): Provided that the Commission shall invite a representative of the High Court to be present at the interview held by the Commission for this purpose and the representative so present may take part in the deliberations of the Commission but shall not be entitled to vote. (iii) Appointments from amongst Members of the Bar shall be made from the candidates who:- (a) are ordinarily not less than twenty-one and not more than thirty-five years (forty years in the case of candidates belonging to communities recognized as Backward by Government for the purposes of recruitment); (b) who have practiced as advocates, attorneys or pleaders in the High Court or Courts subordinates thereto for not less than three years on the last date prescribed for the submission of the applications. (c) are certified in Brihan Mumbai by the Principal Judge of the City Civil Court on the Chief Judge 22 of the Small Causes Court or the Chief Metropolitan Magistrate, and elsewhere by a District Judge, to have sufficient knowledge of Marathi, to enable them to speak, read, write and translate with facility into English and vice-versa. (Note : In the case of Public Prosecutor, serving under the Government who apply for the posts .... their service in that capacity shall be taken as practice at the Bar.) (iii-A) appointments from amongst members of the ministerial staff, shall be made from candidates who - (a) are ordinarily no more than forty-five (fifty years in case of candidates belonging to communities recognized as Backward by Government for purposes of recruitment); (b) who have obtained the L.L. B. degree or qualified for enrollment as Advocate and served as such members for period of not less than five years, including not less than three years after obtaining such degree or qualifying for such enrollment; and (c) are certified in the case of the members of the ministerial staff of the High Court, by the Registrar of the High Court and in the case of the members of the ministerial staff of the subordinate Courts, by the Presiding Officer of the said Court, to have sufficient knowledge of Marathi to enable them to speak, read, write and translate with facility into English and vice-versa; (d) are certified in the case of member of the staff