N.H. Bhatt, J.
1. This is a petition by a fairly senior Judicial Officer in the Judicial service of this State, complaining of his having been allegedly struck off from the select list prepared with effect from 1st May, 1983 for the purpose of promotion to the post of Assistant Judges. The prayers in the petition are reproduced below :-
(a) declaring Rule 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment (Amendment) Rules, 1979 as invalid and unconstitutional :
(aa) declaring Rule 6(4)(i) of the Gujarat Judicial Service Recruitment (Amendment) Rules, 1979 as invalid and unconstitutional;
(aaa) quashing and setting aside the decision of the Hon'ble High Court, rejecting the petitioner's representation vide Annexure BB;
(b) directing the respondents to include the petitioner's name in the select list for the year 1983-84 for promotion to the post of Assistant Judges on the basis of his seniority, as if it was not struck out from said list at all;
(c) directing the respondents to appoint the petitioner to the post of Assistant Judge on the basis of his seniority and the rank in the select list for the year 1983-84 with effect from the date from which he ought to have been so appointed by promotion to the said post on the basis of the submissions made in the petition and further directing the respondents to grant to the petitioner all consequential benefits like salary, seniority and further promotions on that basis;'
2. In order to understand the controversy and the points of law canvassed before us, a few facts require to be closely noted. The petitioner's birth date is 6th April, 1935. As per the Recruitment Rules for promotion to the post of the Assistant Judge, there are Gujarat Judicial Service Recruitment Rules 1961 as amended in 1974 and 1979. The petitioner was considered for that selection in the years 1980-81 and 1981-82, but was not found suitable. However, in the select list prepared for the year 1982-83, he was put on the list, but to his ill-luck his turn did not come up and the select list lapsed with the expiry of 30th April 1983. By that date, he had already completed 48 years of his life and so he was not put on the select list for the following year viz. 1983-84. He, however, thought that because of the consistent practice to keep a man's name in the select list for three years if he was once selected, his name was deleted on his completing 49 years of age and that is how he had come to this court. The affidavit-in-reply filed on behalf of the Administrative side of the Gujarat High Court, however, has made it clear that in the new list that was prepared with its operation commencing on 1st May, 1983, he was not at all put on the list because of his having completed 48 years of age by that date. The arguments were advanced by Mr. N. J. Mehta on this admitted fact.
3. It is to be noted that every year a select list is prepared and the year for the purpose of this select list is stated to be commencing on 1st May of that year and ending on 30th April of the succeeding year. It is also again not in controversy that the High Court has been conducting written and oral tests for the purpose of selecting a candidate for the promotional post of an Assistant Judge and that other things being equal, if a Judicial Officer is selected, he is not subjected to the tests again for the further period of two years. In other words, his name is being automatically incorporated in the new list to be prepared, on the assumption that his merits which gave rise to his selection once continue to hold the field for the period of three years. This is also no longer in controversy. The petitioner's grievance before us, however, is that under Rule 8(5) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 as per the amendment of the year 1970, no question of age bar will be applicable to him, who was already in the Government service and that the said amended Rule 8(5) of the aforesaid Rules containing a non-abstante clause overrides the Gujarat Judicial Service Recruitment Rules 1961 as amended under which the tests are held and selection lists are prepared year after year. It was secondly urged that the Rules under Art. 309 of the Constitution of India prescribing conditions and criteria for promotion to District Judge are made by the Governor in exercise of legislative power and there the High Court has no say in the matter as far as the formulation of the Rules is concerned and if the very Governor then makes the abovementioned 1967 General Rules overriding the special Rules of recruitment, the High Court cannot have any say in the matter. It was also urged before us that there was no conceivable rational behind laying down any age bar for the purpose of promotion to the post of an Assistant Judge in the case of a person already in service, in particular when for direct recruitment to the post of a District Judge, there is no age limit whatsoever provided for. These are the broad arguments that were advanced before us, but another argument was vigorously put forward before us on the ground that the Rules of 1961 (as amended) were wrongly interpreted by this High Court on its Administrative side and he was entitled to be continued on the list and could not have been denied his placement on 1st May, 1983 on the ground that he had completed 48 years of age and that he was entitled to continue them up to the completion of 49 years any rate. We propose to examine the last argument first.
4. In exercise of the powers conferred by Art. 234 of the Constitution of India, the proviso to Art. 309 of the Constitution of India and with some former Bombay Government's notification dated 5th September, 1959, the Governor of Gujarat, after consultation with the Gujarat Public Service Commission and the High Court of Gujarat, made the Rules in question. These Rules deal with the recruitment to the cadre of Civil Judge (S.D.), Civil Judge (J.D.), Chief Metropolitan Magistrates, District Judges and the Judges of the Ahmedabad City Civil Court and other posts. The posts of District Judges, etc., are labelled as the Senior Branch in the aforesaid Rules. We in this petition are concerned with the method of Recruitment to the Senior Branch which in its turn is divided again into the cadre of the Principal Judge of the Ahmedabad City Civil Court, the District Judge, Assistant Judge etc. The relevant part of the Rules as is in operation since 1979 amendment in so far as it concerns us is reproduced below :-
'6. Method of recruitment of the Senior Branch.
(1) ** ** ** (2) The appointment to the post of a District Judge shall be made by the Governor :-
(a) in consultation with the High Court from amongst the members of the Junior Branch who have ordinarily served as Assistant Judges; or
(b) On the recommendation of the High Court from amongst members of the Bar who have practiced as Advocates or pleaders for not less than seven years in the High Court or court subordinate thereto :
Provided that a person recruited at the age of not more than 45 years (exception in the case of a person belonging to a community recognised as Backward by Government for purpose of recruitment in whose case at the age of not more than 48 years) shall before he is appointed as a District Judges, be appointed in the first instance to be Assistant Judge for such period as may, on the recommendation of the High Court, be decided by Government on the merits of his case.
* * * * * * (4)(i) Appointment to the post of an Assistant Judge shall be made by the Government in consultation with the High Court by promotion of a person from amongst such persons (comprising of those holding the post of Civil Judges (J.D.) and those in the cadre of Civil Judges (S.D.) 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 less seven years as a Civil Judge (J.D.); or
(b) worked on Civil side for a period of not less than three years if he belongs to the cadre of Civil Judge (S.D.);
(ii) A select list of members who are considered fit for appointment by promotion to the post of Assistant Judge shall be prepared annually by Government in consultation with the High Court. The selection shall be based on merits, 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.
(b) if a candidate has reverted to his original post after having officiated in the post of an Assistant Judge for an aggregate period of one year or more, his name will be retained in the select list, even after he has attained the age of 49 years, provided his reversion is not due to his having been found unsuitable for the post or to the unsatisfactory nature of his work;
(c) If a candidate has reverted and his case is not governed by Clause (b), his name will be retained in the select list, after completion of the age of 49 years for as many months in the aggregate as he has officiated as an Assistant Judge, counted from the date of his reversion or the date of his attaining the age of 49 years whichever is later, provided that his reversion is not due to his having been found unsuitable for the post or the unsatisfactory nature of his work;
(d) When the member officiating as an Assistant Judge has, for reasons unconnected with his fitness for the post, to revert to the appointment held by him prior to promotion earlier than his junior officiating as an Assistant Judge, he shall be deemed to have been officiating or acting as an Assistant Judge for the purpose of Sub-cls. (b) and (c) during the period he was reverted notwithstanding that his junior was officiating as an Assistant Judge.
(e) Amongst the members of the select list, their seniority shall be governed by their serial order in such list irrespective of the date on which they may be first appointed to officiate as Assistant Judge;
* * * * * It was urged before us that the term 'reached the age of 48 years' occurring in the above-mentioned rule 6(4)(i) and 6(4)(iii) should be given the same meaning, namely, completing that particular number of years and it was urged on that basis that the petitioner's name could not have been struck off from the list. We have already emphasised above that there is no question of the petitioner's name being struck off from the list and so in one sense of the term, this argument does not arise. Rule 6(4)(i) very categorically mentions that appointment to the post of an Assistant Judge is to be made by the Governor in consultation with the High Court by promotion of a person from amongst Civil Judges (S.D.) and Civil Judges (J.D.), 'whose names have been entered in the Select List referred to in Clause (ii) before thy have reached the age of 48 years and continue in that list on the date of appointment.' Here admittedly by consistent course of conduct, the term 'reached the age of 48 years' has been understood to mean completing the age of 48 years. So, on the date of the making of the list operative, i.e. on 1st May of that particular year, if a selected candidate has not completed the age of 48 years of his life, he is put on the select list and once he is put on the select list, which obviously is operative only for the period of one year, his name shall continue to be in the list till his appointment is made. The above quoted Rule 6(4)(ii) makes it clear that a select list has to be prepared annually by the Government and by consistent course, the annum or year is taken to be one commencing from 1st May and ending on 30th April of the following year. If rule 6(4)(i) holds the field, which it should, on 1st May, 1983 the petitioner, who had completed 48 years of age was not entitled to placed on the select list and there the matter should rest. However, a legal battle was sought to be raised with reference to Clause 6(4)(iii)(a). It was urged that once the name of a candidate was entered into the select list, and which was expected to continue till appointment as per the above quoted rule 6(4)(i), it could not be struck off except when he completes the age of 49 years of his life. This argument suffers from parent absurdity. The life of the select list is one year. If the name is to be struck off only on completion of 49 years of age, which event can be assumed to be accruing in the course of that year, either on the first day or on the last day, the man would obviously be beyond 48 years of age on the first day of the preparation of the list. If a man has completed 48 years of age on the 1st May, no situation can be conceived when he could be said to be completing 49 years within the period of that year. So the term 'reaching of age of 49 years' in the abovementioned rule 6(4)(iii)(a) invariably must be understood to mean 'on entering the 49 years'. The reason is obvious. The age-bar for being selected is non-completing of 48 years. However, if after having been put in the list, he completes 48 years, he becomes ineligible for being appointed and that is why the words used are 'reaching the age of 49 years'. Had the framer of the rule stated reaching the age of 49th year, it would have been better, but that does not mean that we can allow absurdity to be perpetuated. We have to read the above Cls. 6(4)(i) and (iii) harmoniously. Once we interpret the term 'reached the age of 48 years' in Clause 6(4)(i) as completing the age of 48 years, as a matter of inevitability we have to interpret the 'reaching the age of 49 years' occurring in Clause 6(4)(iii)(a) to mean entering the 49th year. We have already said above that if we say that the man's name can be struck off only if he completes the age of 49 years that is a situation that can never arise. In other words, one who has completed 48 years at least on 1st May, 1983 is the only person who can complete 49 years of his full period during the year of list. So, that is the only way of interpreting the provisions of Rule 6(4)(iii)(a).
5. Much was sought to be made of the concession covered in Cls. (b), (c) and (d), but that concession is extended in special circumstances. It is for the law-giving authority to extend the benefit and extend the age bar also on the strength of a person having officiated once in that higher post and thereafter having reverted for want of a post.
6. The second argument, on which was bestowed our best thoughts by us, is resting on the Gujarat Civil Services Classification and Recruitment (General) Rules, 1970. The old Rule of 1967 is reproduced below :
'8(5). In the case of recruitment to a post the upper age limit prescribed in the Recruitment Rules relating to such post, shall, save as otherwise provided in sub-rule (6) not applied to the candidate who is already in Gujarat Government service either as permanent Govt. Servant or as a temporary Govt. servant officiating continuously for six months in a substantive or a leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of first appointment in Govt. service.'
With effect from 1st January 1970 the said Rule came to be substituted by the following text :
'8(5). Notwithstanding anything to the contrary containing in any Rules for the time being in force relating to the recruitment to any service or post, the upper age limit for the purposes of recruitment prescribed in such Rules shall not apply to a candidate, who is already in Gujarat Government service either as permanent Government servant or as a temporary Government servant officiating continuously for six months in substantive or leave vacancy or in a vacancy caused as result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in Government service.'
Relying particularly on the beginning words 'notwithstanding anything to the contrary contained in any Rules for the time being in force relating to the recruitment to any service or post', it was emphasised by Mr. Mehta that the age bar contained in the 1961 Rules as amended would not be attracted. This argument at first blush appears to be quite attractive and that is why we had considered it very closely. The general Rules are general in character, to be applied generally to all cadres and classes. The very Governor who has made those Rules of 1967 and 1970, himself made the amendment of the Rule in 1979, namely, the Gujarat Judicial Service Recruitment (Amendment) Rules, 1979, Clause 6 of which we have already reproduced above. Ordinarily it would have been expected that if the General Rules of 1970 were sought to be attracted to the judicial service recruitment also, the very Governor would not have retained a provision for the age bar. The fact that in a special category of service, namely, the Judicial service, a departure has been made, the principle of interpretation that a special provision derogates from the general one would stand attracted. To overcome this legitimate answer, Mr. Mehta, however, submitted that the General Rules were made operative, 'notwithstanding anything to the contrary contained in any Rules' that may be in vogue for the time being. His argument is that the Governor has once for all laid down that irrespective of what may be stated in future Rules thereafter, that provision was to be ignored because of this general Rule 8(5). Such an intention cannot be attributed to the same authority dealing with a similar general subject matter. The presumption should be otherwise. It is therefore, reasonable to hold that Rule 8(5) was amended by the Governor striking a departure from the provisions made in then existent Rules and whenever in future a special departure was made, it was not intended to be covered by that general provision of Rule 8(5) quoted above.
7. There is one additional reason also for us to reach the same view. Under Art. 233 of the Constitution, there is no obligation cast on the Governor to make any Rules, unlike Art. 234 of the Constitution pertaining to other services in the Judicial Department. However, Art. 233 certainly requires the Governor to consult the High Court in respect of appointments and promotions to the post of District Judges, which term includes Assistant Judges also. Under the Caption 'consulting the high Court for appointment and promotion', there can be Governor's consultation with the High Court while making rules so that when actual appointments are to be made, only the personal suitability of a selected candidate would be required to be discussed. We do not say that the Governor is bound to consult the High Court while making the Rules for the purpose of Art. 233 if he is inclined to make the Rules, but the Governor even while making amendments in the years 1974 and 1979 did consult the High Court of Gujarat and so the Governor in his legislative wisdom thought it fit to consult the High Court even regarding the Rules of appointment and promotion. If it be so, it is safe to assume that the Governor who had made 1970 General Rules did not want those General Rules to be applicable to the judicial service. This intention of the Governor can be easily spelt out from the consistent course adopted by that august office of the Governor right from the year 1961 when the original Rules were made and in the years 1974 and 1979 when two amendments were mooted out.
8. Mr. Mehta, however, in this connection learned very heavily on the judgment of the Supreme Court in the case of Municipal Corporation, Indore v. Smt. Ratnaprabha and Ors. (1977 S.C. 308). There, the subject matter is quite distinct. The question before the Supreme Court was regarding interpretation of the provisions of Clause (b) of S. 138 of the M.P. Municipal Corporation Act, being Act No. 23/56 of that State. S. 7 of the M.P. Accommodation Control Act, 1961 came to be examined in the context of S. 138(b). The Supreme Court held that S. 138(b) of the Act provided that the actual value of any building shall be deemed to be the gross annual rent for which the building might be reasonable at the time of assessment be expected to let from year to year notwithstanding anything contained in any other law for the time being force. It was held by the Supreme Court that in a case where the standard rent of a building has been fixed under S. 7 of the M.P. Accommodation Control Act and there was nothing to show that there had been fraud or collusion; that would be its reasonable letting value, but where it was not so and the building had never been let out and was being used in a manner where the question of fixing its standard rent does not arise by recourse to Clause (b), it would be permissible to fix its reasonable rent without regard to the provisions of 1961 Act. While upholding this argument, it was held that that interpretation gave also proper effect to the non-obstinate clause contained in Clause (b). However, the Supreme Court found as a matter of fact that the High Court had taken the wrong view and that is why the appeal was allowed at the instance of the Indore Municipality. It is, therefore, not correct to say that the Supreme Court laid down that once a general provision is there with non-obstinate clause attached to it, the subsequent legislative amendment cannot be made by the competent legislative authority. This was the argument that was sought to be put forward by Mr. Mehta, which it is difficult for us to uphold.
9. In above view of the matter, we are not required to examine whether the 1970 General Rules and particularly Rule 8(5) quoted above could or could not have precedence over the 1961 Recruitment Rules as amended. We have already held above the Rule 8(5) is valid and operative in its own sphere, but that cannot derogate from the special provision made by the very legislative authority, namely, the Governor acting under the proviso to Art. 309 of the Constitution of India and the Governor having made this 1979 amendment in the Recruitment rules and affirmed the age bar, the petitioner's grievance cannot be entertained.
10. This leads us to another argument resting on Art. 14 of the Constitution of India. Banking heavily again on the above-quoted Rule 8(5) of the 1970 General Rules, Mr. Mehta urged that the policy of the legislative authority was the eliminate the age bar in the case of the persons already in service and when for the post of a District Judge no age limit was prescribed, there was no sensible reason, no conceivable rationale, existing for the purpose of providing for an age bar while considering the case of the promotional post of an Assistant Judge. For the purposes of Arts. 333, 334 and 335 or the Constitution of India, an Assistant Judge is included in the term 'District Judge'. It cannot be gainsaid Mr. Mehta's argument was that if for the post of District Judge to be filled in by direct selection a member of the bar can be recruited at any point of time before the age of superannuation there was no ostensible reason for treating the posts of the Assistant Judge, which are in all respects of the same class, differently. It is to be noted with pertinence that the direct recruitment to the post of the District Judge is confined to the members of the Bar. It is no doubt true that the State has not chosen to file any affidavit explaining why there can conceivably be a different treatment meted out to the Assistant Judges. It also cannot be disputed that if prima facie that charge of discrimination can be sustained, the onus will be on the legislative body or the supporting agencies, namely, the State of Gujarat and/or the High Court on its administrative side, to show the justification for the different treatment. However, this system has been in vogue for past many decades. Even when there was bilingual State of Bombay and the Bombay High Court was there, recruitment from the Bar was there and there was no age limit and there was an age limit for promoting the members of the lower judiciary to the post of an Assistant Judge. Though not defined expressly, the reasons are too not notorious to be ignored or by-passed. It is the known practice of the service law that age bar is provided by recruiting authorities. Providing for age bar for different cadres or posts is not repugnant to Art. 14 of the Constitution, though for certain public posts like those of Ministers, Governors, the President, there is no age bar. On the basis, it cannot be argued that if an independent citizen can at any time become the President, Governor or a Minister, the provision regarding age bar contained in the service rules do not apply to a person (who is in the service) on the basis of equality. After all, in actual practical life, different situations are conceived, envisaged and treated. We can take judicial notice of the fact that members of the Bar have got free atmosphere to work, no shackles of any kind, except the ethical ones which are experienced by them. There is enough scope for them to better develop their mental faculties. If in the interest of an important post like that of a District Judge a member of the Bar is to be had in order to enthuse fresh blood at the important position of the service cadre, it can be said to be a different class altogether where considerations may not arise like those arising while considering the cases of Ministership, Governorship or Presidentship of India. So, it can be said that the law makers probably envisaged that the Civil Judges (J.D.) or Civil Judges (S.D.), who complete 48 years of age may not be fully equipped with the physical and mental caliber for that higher post calling for essentially different types of duties, namely, the duty to deal with appeals and the duty to deal with more serious offences, viz. Sessions Cases and, therefore, a man in the rut of lower service might have his faculties impaired, making him not suitable for the higher duties to be performed by him as an appellate Judge. The class of Assistant Judge and the class of District Judges for the purpose of treatment constitute two different classes, thought they may have some overlapping traits or attributes between them. So, there is no question of any hostile discrimination in this case.
11. Mr. Mehta in this connection has invited our attention to the Judgment of the Punjab and Haryana High Court in the case of Kirpal Singh v. The State of Punjab, 1969 Service Law Reporter p. 120. There the point decided is quiet distinct. The relaxation of age limit at the whim of the selection Board was stated to be unsustainable and it is obviously so. At any rate, in view of what we have observed above in the light of the well-known facts pertaining to the judicial administration in the State, the said authority can lend little assistance.
12. The result is that petition fails and stands rejected. Rule is discharged with no order as to costs.