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2007 Supreme(Bom) 993
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SWATANTER KUMAR, C.J. & SMT. RANJANA DESAI, J.
Mukulika S. Jawalkar - Petitioners
Versus
State of Maharashtra - Respondents
WRIT PETITION NO. 3930 OF 2007
WITH
WRIT PETITION NO. 4644 OF 2007
WITH
WRIT PETITION NO. 4645 OF 2007
Decided on : July 19, 2007
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.
Headnote:Constitution of India, 1950 - Articles 14, 16, 19(1) and 226- Condition necessary as 55% in LL.B for general and 45% for S.C./S.T. and tax payee-For shortlisting as District Judge-Challenged-As respondent has no jurisdiction to fix any shortlisting criteria, no nexus between two conditions and violates fundamental rights, writ petitions itself are misconceived.-The facts are not in dispute in the present case. The first and the foremost question that Court need to consider is whether any short listing criteria can be adopted by the selecting authority, even if it was not so specifically stated in the advertisement. The procedure of short-listing is not unknown to a process of selection. In various selections and in various forms, the procedure of short-listing is adopted to make the process of selection more merit-oriented and administratively convenient. To say that, providing of such criteria per se is violative of Articles 14 and 16 of the Constitution of India would, in fact, tantamount to construing the basic principle of service jurisprudence to the very concept of selection on merit.
Constitution of India - Articles 233, 14 and 16 - Appointment to post of District Judge - S election process - Shortlisting criteria - Providing of. - There is an apparent nexus between the introduction of the criteria and process of selection coupled with the object of selection process. Keeping in view the number of applications, shortlisting criteria was adopted requiring that only person with 55 per cent marks in Law would be entitled to take the written examination and that he/she should be an income- tax payee. In addition to this, they were required to submit therir returns. It is expected that an advocate who has been filing returns for three years preceding the date of the application would at least pay tax in any one year in all the years despite benefit of exemptions. No quantum of payment of tax was the basis of the said criteria. But it was certainly expected of every applicant that he would disclose his true income and would be paying the tax due. In terms of Articles 14 and 16 of the Constitution of India, an applicant has a legitimate right to be considered for the selection but only in accordance with the Rules and prescribed procedures. There is no indefeasible legal, much less of fundamental, right vested in an applicant to claim appointment. By adopting a criteria which was uniformly applied to all applicants, the petitioners were found not eligible and thus not permitted to take the written examination.
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 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:
“ 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 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
