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Article 309 in The Constitution Of India 1949
Family Courts Act, 1984

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Bombay High Court
Mrs. Kavita Sandesh Patil vs The Registrar, High Court, ... on 22 October, 2010
Bench: B.H. Marlapalle, U. D. Salvi

1 wp3775-10-jud ++

sas

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.3775 OF 2010

Mrs. Kavita Sandesh Patil, ] Age: 41 years, Occu: Advocate, ] Residing at Plot No.161, Abhinav ] Nagar, Borivali (E), Mumbai-400 066. ] ..Petitioner.

V/s.

1) The Registrar, High Court, Bombay-32. ] ]

2) The Registrar (Legal), Appellate Side. ] High Court, Mumbai - 32. ] ]

3) The State of Maharashtra ] ..Respondents.

Mrs P.U. Badadare for petitioner.

WITH

WRIT PETITION NO.3713 OF 2010

Mr. Dilip Shivajirao Ghumare, ] Age: 41 years, Occu: Judicial Officer, ] Metropolitan Magistrate, 62nd Court, ] Kurla, Mumbai-400 070. ] ..Petitioner.

V/s.

1) The Registrar General,

High Court, Bombay, Appellate Side, ] Fort, Mumbai - 400 032. ] ]

2) The State of Maharashtra, ] Through the Secretary, ] Law & Judiciary Department, ] State of Maharashtra, ] Mantralaya, Mumbai - 400 032. ] ..Respondents.

Mr.C.T. Chandratre for petitioner.

2 wp3775-10-jud ++

WITH

WRIT PETITION NO.4657 OF 2010

Sou. Premlata Bhupal Shetti, ] Age: 46 years, Occu: Advocate, ] R/o. Nandinikar Galli, Mangalwar ] Peth, Miraj, Dist. Sangli ] ..Petitioner.

V/s.

1) The Registrar General, ] High Court, Appellate Side, ] Mumbai -32. ] ]

2) Registrar (Legal) High Court ] Appellate Side, Mumbai - 32. ] ..Respondents.

Mr. Manoj Patil for petitioner.

WITH

WRIT PETITION NO.5376 OF 2010

1. Smt. Padma w/o. Murlidhar Chandekar ] Age: 49 years, Occu: Lawer, ] R/o. 275, Shankar Nagar, Nagpur. ]

2. Smt. Sunita w/o. Prabhat Chachondia, ] Age: 53 years, Occu: Lawer, ] R/o. Near Shani Mandir, Sitabuldi, ] Nagpur. ]

3. Smt. Suhas w/o. Nilotpal Deshpande ] Age: 44 years, Occu: Lawer, ] R/o. Ramnagar, Nagpur ]

4. Smt. Vrushali w/o. Jitend Pradhan - ] Maiden name Vrushali d/o. Vilas ] Kalantare, Age: 49 years, Occu: Lawer, ] R/o. 12, Arun Kunj, Bajaj Nagar,Nagpur. ]

5. Archana Vinaykrao Kadu, ] Age: Major, Occu: Lawer, Residents of ] Friends Colony, Nagpur. ]

6. Jayashree Atul Mahajan, ] Aged Major, Occu: Lawer, R/o. Nagpur ] 3 wp3775-10-jud ++

7. Ms. Mrunal B. Naik ] Age: 41 years, R/o. Shankar Nagar, ] Nagpur ] ..Petitioners.

V/s.

1) The State of Maharashtra through ] its Secretary, Law & Judiciary, ] Mantralaya, Mumbai -32. ] ]

2) The Registrar General, ] High Court of Judicature at Bombay ] Bombay. ] ..Respondents.

Mrs. Padma Chandekar - petitioner No.1 in person.

Mr. Kiran Mohile for remaining petitioners.

WITH

WRIT PETITION NO.5377 OF 2010

Miss Vijaya D/o. Wamanrao Balpande ] Age: 37 years, Occu: Legal Practitioner ] R/o. Opposite Shivaji Science Colleg, ] Congress Nagar, Nagpur. ] ..Petitioner.

V/s.

1) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, ] Mantralaya, Mumbai - 400 032. ] ]

2) The Registrar General, ] High Court of Judicature at Bombay, ] Mumbai. ] ..Respondents.

None for petitioner.

WITH

WRIT PETITION NO.5378 OF 2010

Smt. Rachana w/o. Avinash Wasnik, ] Age: 40 years, Occu: Advocate, R/o. 23 ] Bezonbagh, Kamptee Road, Nagpur. ] ..Petitioner. 4 wp3775-10-jud ++

V/s.

1) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ]

2) The Registrar General, ] High Court of Judicature at Bombay, ] Mumbai. ]

3) The Registrar (Legal) ] High Court of Judicature at Bombay, ] Mumbai. ] ..Respondents.

None for petitioner.

WITH

WRIT PETITION NO.5379 OF 2010

1) Ayalasomajula Jaisree Rao, ] Age: 53 years, Occu: Legal Practitioner ] R/o. 160, Godawari, Apartment, Hill Top, ] Nagpur. ]

2) Sou. Sujata Gajanan Kasbekar, [ Age: 44 years, Occu: Legal Practitioner ] R/o. 96, Indrapastha Society, Poonam, ] Vihar, Swalambinagar, Nagpur. ]

3) Sou. Chandraprakash Deo, ] Age: 53 years, Occu: Legal Practitioner ] R/o. Jageshwar Apartment, Sawarkar Nagar, ] Nagpur. ] ..Petitioners.

V/s.

1) The Registrar General, ] High Court of Judicature at Bombay, ] Bombay. ] ]

2) The State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ..Respondents/ 5 wp3775-10-jud ++

None for the petitioners.

WITH

WRIT PETITION NO.5382 OF 2010

Shri Hemant s/o. Narayan Bhondge, ] Age: 40 years, Occu: Legal Practitioner, ] R/o. Plot No.45, Vishwakarma Nagar, ] Road No.10, Near Ajni P.S. Nagpur-27. ] ..Petitioner.

V/s.

1) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ]

2) The Registrar General, ] High Court of Judicature at Bombay, ] Bombay. ] ..Respondents.

Mr. Kiran Mohile for petitioner.

WITH

WRIT PETITION NO.5383 OF 2010

Rajesh S/o. Balkrishna Visputa, ] Age: 45 years, Occu: Legal Practitioner, ] R/o. 'Vandan' Agarwesh, Jaihind Chow. ] Old City, Akola. ] ..Petitioner.

V/s.

1) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ]

2) The Registrar General, ] High Court of Judicature at Bombay, ] Mumbai. ] ..Respondents.

None for petitioner.

WITH

6 wp3775-10-jud ++

WRIT PETITION NO.5384 OF 2010

Sou. Meena w/o. Nitin Hiwase, ] Age: 37 years, Occu: Legal Practitioner ] R/o. 19, Nav-Nirman Society, Ranapratapnagar ] Nagpur. ] ..Petitioner.

V/s.

]

1) The Registrar General, ] High Court of Judicature at Bombay, ] Bombay. ] ]

2) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ..Respondents.

None for petitioner.

WITH

WRIT PETITION NO.5385 OF 2010

1. Motiram S/o. Vithoba Amle, ] Age: 39 years, Occu: Legal Practitioner, ] R/o. Flat No.2F, Manohar Vihar Colony, ] Hazaripahad Road, Nagpur, Dist. Nagpur. ] ]

2. Ms. Varsha w/o. Jagdeesh Dongare ] Age: 38 years, Occu: Legal Practitioner, ] R/o. Maitkrikunj, Gajanan Colony, Opp. ] Balbharti Pathya Pustak, VMV Road, ] Amravati, Tal. & Dist. Amravati. ] ..Petitioners.

V/s.

1) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ]

2) The Registrar General, ] High Court of Judicature at Bombay, ] Mumbai. ] ..Respondents.

None for petitioner.

7 wp3775-10-jud ++

WITH

WRIT PETITION NO.5386 OF 2010

Nita Pramod Nimablkar, ] Age: 40 years, Occu: Legal Practitioner, ] R/o. 22, Pioneer Residency Park, ] Somalwada, Nagpur 25 (MS) ] ..Petitioner.

V/s.

1) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ]

2) The Registrar General, ] High Court of Judicature at Bombay, ] Mumbai. ] ..Respondents.

Mr. Kiran Mohile for petitioner.

WITH

WRIT PETITION NO.5515 OF 2010

Mrs. Jyoti S.Iyer, ] Adult, Occu: Service, Being Member Central ] Mumbai Consumer District Forum,Mumbai ] R/A. B-1, Taruna CHS Ltd., Opp. Johnson & ] Johnson Co., L.B.S. Marg, Mulund (W), ] Mumbai - 400 080. ] ..Petitioner.

V/s.

1) The Registrar General, ] High Court of Judicature at Bombay, ] Appellate Side, Fort, Mumbai- 400 032. ] ]

2) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ..Respondents.

Mrs. Jyoti Iyer - petitioner in person.

WITH

8 wp3775-10-jud ++

WRIT PETITION NO.6284 OF 2010

Renuka w/o. Vishnu Ghule (Palwe) ] Age: 40 years, Occu: Advocate, ] R/o. Jaibhavani Nagar, Aurangabad, ] Dist. Aurangabad. ] ..Petitioner.

V/s.

1) State of Maharashtra, ] Through the Secretary, ] Law & Judiciary, Mantralaya, ] Mumbai - 400 032. ] ]

2) The Registrar General, ] High Court, Bombay, ] ..Respondents.

None for the petitioner.

Mrs. M.P. Thakur, A.G.P. for State.

Mr. M.S. Karnik for High Court.

CORAM : B.H. MARLAPALLE AND

U.D.SALVI, JJ.

DATED : 22ND OCTOBER, 2010

P.C. :-

1. Rule. Respondents waive service.

2. These petitions have been finally heard with the consent of

the parties.

3. The petitioners in this group of petitions have submitted their

applications for being selected to the posts of Judge, Family Court in

response to the advertisement published on 27/09/2010 in the local

newspapers and also on the website of this Court. The High Court had 9 wp3775-10-jud ++

received in all 895 applications and they were all subjected to scrutiny.

476 applications were accepted and the remaining came to be rejected

on various grounds. 166 applications were rejected / were found to be

ineligible on the sole ground as required in clause 11(e) of the

advertisement, in as much as, a declaration in Form 'A' appended to the

Maharashtra Civil Services (Declaration of Small Family) Rules, 2005

('Rules of 2005' for short) was not submitted along with the application

form submitted by each of the applicants. The present petitioners are 14

amongst the 166 applicants found to be ineligible on this ground i.e.

failure to submit along with the application, the declaration in Form 'A'

appended to the Rules, 2005. Three of the petitioners had submitted

representation against the said decision holding them ineligible and the

remaining petitioners have directly approached the High Court. A

Division Bench of this Court (Nagpur) passed an interim order on

23/04/2010 and directed as under:-

" We hereby direct the respondent nos.1 & 2 to permit the petitioners to participate in the process of selection for the posts of Judges, Family Court, scheduled to commence from 2-5-2010. However, the result of selection process of the petitioners should not be declared without obtaining the permission of this Court. It is made clear that grant of permission to participate in the selection process is provisional and shall not create any equity in favour of the petitioner/s and shall be subject to the result of the petitions. "

4. However, the selection process did not commence from 10 wp3775-10-jud ++

02/05/2010 and remained stayed in view of the administrative decision

dated 30/04/2010 taken by the Selection Committee. The petitions filed

at the Nagpur Bench and Aurangabad Bench came to be transferred to

the principal Bench.

5. As per the petitioners, failure to submit the declaration in

Form "A' appended to the Rules, 2005 along with the application should

not be treated as a disqualification for participation in the selection

process, though it may be a disqualification for appointment to the post

of Judge, Family Court. Our attention was invited to clause 5 of the

advertisement and it was submitted that the certificates which were

necessarily required to be submitted along with the application have

been set out therein and the declaration in Form 'A' was not one of the

certificates mentioned therein. It was in this background sought to be

stated before us that failure to submit the declaration in Form 'A' should

have been treated as an irregularity so as to correct it by the concerned

candidate within the specified period of one or two weeks, rather than

declaring them ineligible solely on that ground. In support of this

contention, our attention was invited to clause 12 of the application

submitted by each of the petitioners in the prescribed form. In clause

12, the applicant is required to mention the number of children along with

their names and dates of birth. When such an information was available

on record and in the prescribed application by each of the candidates, 11 wp3775-10-jud ++

the submission of declaration in Form "A' was merely a procedural

requirement and it could not have been treated as a mandatory

requirement so as to reject the application during the process of scrutiny.

The petitioners also state that none of them have more than two children

and in fact few of them have also declared that they do not have any

child. In such a situation, the submission of declaration in Form 'A' was

only a confirmatory requirement for which the petitioners could have

been called upon to comply within a fixed period before the selection

process commenced, rather than holding them ineligible in the selection

process. It was also submitted that Section 4 of the Family Courts Act,

1984 r/w. Family Courts (Recruitment and Service Conditions) Rules,

1990 does not provide for such a requirement as a mandatory condition.

6. Mr. Karnik, the learned Counsel appearing for the

respondent No.1 submitted that clause 11 of the advertisement states

that declaration in Form 'A' should be submitted along with the

application. He also referred to the affidavit in reply and urged that when

the applications are scrutinized, there were different grounds for deciding

ineligibility and the candidates who were applying for the post of Judge,

Family Court ought to have followed the requirements mentioned in the

advertisement and if they failed in complying with the said requirements,

they cannot find fault in the decision taken by the Scrutiny Committee in

rejecting their applications by holding them ineligible. Mr. Karnik also 12 wp3775-10-jud ++

invited our attention to Rule 4 of the Rules of 2005 and emphasized that

there is a mandate to submit the declaration in Form 'A' along with the

application for any service under the State of Maharashtra. He,

therefore, urged that the petitions are required to be dismissed. He also

pointed out that in all 476 applications are found to be eligible and if the

petitioners are held as eligible candidates, the applications which are

166 in numbers will be added to the list of the eligible applications and

the number of eligible applications will be disproportionate as well as

administratively unmanageable to administer the selection tests, having

regard to the fact that there are in all 15 clear vacancies and 6

anticipatory. In short, it was submitted by Mr.Karnik that the ratio of

eligible applications as of now is already 1: 24 and, therefore, even

otherwise, there are no mitigating circumstances to show leniency by

giving some time to the petitioners to submit the declaration in Form 'A'

so as to hold them eligible.

7. Clause 5, 11, 19 & 20 of the advertisement are reproduced

as under :-

"5) (a) A candidate, who is not already in service, must submit with his application copies of certificates showing:- i) his age as on the date of the Advertisement. (ii) his standing as Practitioner in Court. iii) that he is of good moral character, from two respectable persons.

13 wp3775-10-jud ++

iv) that he is certified to have sufficient knowledge of Marathi to enable him to speak, write and translate with facility into English and vice versa.

v) other certificates in support of the claim to have one or the other qualifications referred to above.

vi) In case the candidate is a practising Advocate, two separate recommendation from practising Advocates designated as Senior Advocates or from practising Advocates having more than 20 years standing at the Bar, certifying that the candidate is suitable appointment as a Judge of the Family Court, should be sent directly under sealed cover by the recommending Advocates to the Registrar General, High Court, Bombay - 400 032 and marked "Confidential" - Family Court" so as to reach on or before 30th October, 2009.

11) Disqualification for appoint in the service :-

No personal shall be eligible for appointment to the service;- (a) -----

(b) ----

(c) ----

(d) ----

(e) if he has more than two children.

Explanation : - For the purposes of this clause, where a couple has only one child, any number of children born out of a single subsequent delivery shall be deemed to be one child.

Provided that, a person having more than two children on the date of commencement of the Maharashtra Civil Services (Declaration of Small Family) Rules, 2005 i.e. 28-4-2005, shall not be 14 wp3775-10-jud ++

disqualified for appointment under this clause so long as the number of children he had on the date of such commencement does not increase.

A candidate shall submit,along with the application form, a declaration in Form 'A' appended to the Maharashtra Civil Services (Declaration of Small Family) Rules, 2005.

19) Application should be submitted only by Registered Post or Speed Post in the prescribed format with copies of testimonials referred to above and two passport size colour photographs, one duly affixed on application and one in separate envelope without pinning it to any paper so as to reach the office of the Registrar General, High Court, Bombay - 400 032, on or before 30th October, 2009. The application should be accompanied by fees in the sum of Rs.1,000/- for General Category and Rs.500/- for Backward Class candidates, in the form of demand draft in favour of Registrar, High Court, Appellate Side, Bombay, payable at par at Mumbai. Fees shall not be refunded in any case. The envelope should be inscribed as "APPLICATION FOR THE POST OF JUDGE, FAMILY COURT IN THE STATE OF MAHARASHTRA." The candidates are required to download the format of the application from the website of the High Court i.e. http://bombayhighcourt.nic.in or obtained from the office of the Registrar (Legal), High Court, Bombay or Principal Judge, City Civil Court, Bombay or the President, Industrial Court, Bombay or any of the District Courts, Industrial Courts in the State. Applications received after prescribed date will not be entertained on any ground.

20) The High Court reserves its right of short listing at the time of scrutiny of applications by applying uniform and reasonable 15 wp3775-10-jud ++

norms. "

8. Relying upon clause 20 of the advertisement, Mr. Karnik

submitted that the High Court was justified in holding the petitioners

ineligible during the course of scrutiny of the application and such a

condition has been applied uniformly in a reasonable manner and hence

the decision in the scrutiny process is, therefore, not vitiated nor said to

be illegal or contrary to any Rules.

9. Rules, 2005 have been framed by the Government of

Maharashtra in exercise of powers conferred by the proviso of Article

309 of the Constitution of India and they have been published in the

State Government Gazette on 28/03/2007. Rules, 3, 4, 5 & 6 of the said

Rules read as under:-

" 3. Necessity of declaration of Small Family - Notwithstanding anythings contained in any rules or orders or instruments made in that behalf, regulating recruitment to Group A, B, C or D post in Government Service or any other order or instruments made in that behalf, the declaration of Small Family shall be an additional essential requirement for an appointment to Group A, Group B, Group C or Group D post in any Government Service: Provided that, a person having more than two children on the date of commencement of these rules shall not be disqualified for appointment under these clause so long as the number of children he had on the date of such commencement does not increase: 16 wp3775-10-jud ++

Provided further that a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause.

4. Submission of declaration - a person who desires to apply for any post in Group A, B, C or D in any Government Service shall submit, along with the application form, a declaration in FORM "A" appended to these rules.

5. Rules not to apply - These rules shall not be made applicable where the selection process was started before the date of commencement of these rules.

6. Power to Relax the Provisions of these rules - Notwithstanding anything contained in these rules, Government may relax the provisions of any these rules, under such circumstances in such manner as shall appear it to be just and reasonable and shall record the reasons for any such relaxation. "

As per Rule 4, a person who desires to apply for any post in

Group A, B, C or D in any Government Service shall submit along with

the application form, a declaration in Form 'A' appended to the Rules.

As per Mr. Karnik, the submission of such declaration along with the

application is a mandatory requirement. On the other hand, it is the

contention of the petitioners that though these rules have come into

force some time in the year 2005, when the advertisements were

released for selection to the posts of judicial officers under the

Maharashtra Judicial Services Rules, 2008, the requirement for 17 wp3775-10-jud ++

submission of declaration in Form 'A' was not stipulated and for the first

time such a condition has been incorporated in the subject

advertisement published for selection to the post of Judge, Family Court.

It was also submitted that it would not be appropriate to follow the

language of Rule 4 of the Rules, 2005 in isolation and on the face of the

information otherwise furnished by the petitioners in their applications,

the condition of submission of Rules deserves to be diluted and it could

not be said that it is a mandatory condition to submit along with the

application. The petitioners have also drawn our attention to Rule 6

which states that notwithstanding anything contained in the said Rules,

the Government may relax the provision under such circumstances and

in such manner as shall appear to be just and reasonable and shall

record the reasons for any such relaxation. It was contended by the

petitioners that Rule 6 permits intervention of this Court so as to do

justice to them by providing for some fixed time to comply with the

requirement of submission of the declaration in Form 'A'.

10. We have given our anxious considerations to the rival

arguments advanced before us. We have noted that the selection

process has remained in abeyance for the last about more than 6

months. The posts remained unfilled (by nomination) and in none of the

cases it is pointed out that the petitioner has more than two children. It

is not the case that any of the petitioners have not furnished the relevant 18 wp3775-10-jud ++

information in clause 12 of the prescribed application. The interim

orders with detailed reasons were also passed allowing the petitioners to

undergo the selection process subject to the final outcome in the

petitions. In such obtaining circumstances and while holding that the

submission of declaration in Form 'A' is necessary requirement under

Rules 2005, we are of the considered opinion that with the assistance of

Rule 6, there is a case made out to grant some relaxation by giving a

fixed time of one week to submit the declaration in Form 'A'. If any of

the petitioners or any of the 166 ineligible candidates fail to submit the

declaration within the prescribed time of one week to the Registrar

General in person or by post, they shall have to suffer the consequences

and will be finally treated to be ineligible. Without going into the

procedural aspects, in our opinion, a case has been made out to grant

an opportunity to the petitioners and other similarly placed candidates

(for failure to submit declaration in Form 'A' along with the application)

and permit them to undergo the selection process for the post of Judge,

Family Court. It would be not be at the same time a reason to deny such

relaxation only on the ground that the number the eligible candidates i.e.

476 is large enough for the selection procedure to administer and an

addition to the said number may cause administrative inconvenience.

On the other hand, it is also advisable, so as to select the best of the

candidates, to have a wider selection choice and whether the selection

process is administered to 500 candidates or 700 candidates, is not 19 wp3775-10-jud ++

going to make such a difference so as to deny an opportunity to

complete the procedural formalities. It is also an admitted position that

every candidate who undergoes the written test is not for the called viva

(oral interview). Only those candidates who secure 50% or more marks

in the written examination are held to be eligible for the viva and that

itself gives an additional stage of elimination.

11. In the premises we allow these petitions. We direct the

Registrar General to call upon all the petitioners and the remaining

candidates who were found to be ineligible on account of their failure to

submit a declaration in Form 'A' along with the application, by a written

notice to submit the same declaration within one week from the date of

the receipt of the notice, to him / her. In addition to such notice, a notice

will also be displayed on the website of the High Court. We note down

that the petitioners have waived such a notice. If the petitioners and

other similarly placed candidates submit a declaration in Form 'A' within

the said prescribed period, they shall be held to be eligible, unless found

to be ineligible on some other count, so as to undergo the selection

process for the post of Judge, Family Court.

12. We also direct the Registrar General to take all the

necessary steps so as to ensure that the selection process is

commenced and completed expeditiously and preferably by 31st 20 wp3775-10-jud ++

January, 2011.

13. Rule is made absolute in the above terms with no order as

to costs.

(U.D.SALVI, J.) (B.H. MARLAPALLE, J.)