Judgment

RAY, J. : - This appeal raises a very short though important question as to the validity and vires of the provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment (Amendment) Rules 1979. The relevant rules are quoted hereinbelow :-

(i) Appointment to the post of an Assistant Judge shall be made by the Governor in consultation with the High Court by promotion of a person from amongst such persons (comprising of those holding the posts of Civil Judges (Junior Division) and those in the cadre of Civil Judges (Senior Division) whose names have been entered in the Select List referred to in Clause (ii) before they have reached the age of 48 years and continue in that list on the date of appointment;

Provided that no person shall be eligible for such appointment unless he has:-

(a) served for a period of not less than seven years as a Civil Judge (Junior Division); or

(b) worked on civil side for a period of not less than three years if he belongs to the cadre of Civil Judge (Senior Division).

(ii) A Select List of members who are considered fit for appointment by promotion to posts of Assistant Judges shall be prepared annually by Government in consultation with the High Court. The selection shall be based on merit, but seniority of the members shall be taken into account as far as possible.

(iii) (a) The name of a candidate entered in the Select List shall be struck out of it on his reaching the age of 49 years if during the interval, he is not appointed as an Assistant Judge.

2. The appellant was born on 6-4-1934 and in accordance with the provisions of Gujarat Judicial Service Recruitment Rules 1961 as amended in 1964 to 1969, the appellant being in the cadre of Civil Judge (Senior Division) was considered for selection for inclusion in the select list to be considered for appointment by promotion to the post of Assistant Judge in the years 1980-81 and 1981-82, but he was not found suitable. He was, however, found suitable and his name appeared in the Selection List prepared for the year 1982-83. His turn did not come up and the Select List lapsed with the expiry of 30-4-1983. On that date as he had already completed 48 years, his name was not put on the Select List for the following year, namely 1983-84. It is against this non-appearance of his name in the Select List of 1983-84, the appellant assailed the validity of the aforesaid provisions of Rules 6(4)(i) and 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment Rules, 1961 as amended up to 1979 on the ground that they were unreasonable, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India by a Writ Petition in the High Court of Gujarat being Civil Appln. No. 2332 of 1984, whereon a rule was issued on December 17, 1984. The said rule after notice to the parties was discharged and it was held that the impugned rules were not arbitrary, unreasonable or irrational and they are not also discriminatory.

3. The Governor of Gujarat framed the Gujarat Judicial Service Recruitment Rules 1961 under proviso to Article 309 of the Constitution of India read with Article 234 of the Constitution laying down the mode of recruitment to the Gujarat Judicial Service. These rules as amended up to 1979 provide that the Gujarat Judicial Service shall consist of two branches namely (i) Junior Branch and GO Senior Branch. The junior branch shall consist of two classes, i.e. (a) Class I comprising the cadre of Civil Judges (Senior Division) (b) the Judges of the Court of Small Causes and (c) Class II comprising Civil Judges (Junior Division) and Judicial Magistrates of First Class. In accordance with the amended recruitment Rules 1979 the cadre of Civil Judge (Senior Division) shall consist of :-

(a) all Judicial Officers holding on the said date, the post of :-

(i) Civil Judge (Senior Division);

(ii) Chief Judicial Magistrate; and

(iii) Metropolitan Magistrate

(b) Officers recruited to the said cadre under sub-rule (i) of Rule