Prescribing Minimum qualifying marks of 40% in Interview for Judges Selection is valid: Gujarat HC [Read Judgment]

Gujarat High Court has upheld the provision prescribing minimum qualifying marks of 40% in viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge.

The Bench comprising Chief Justice R.Subhash Reddy and Justice Vipul M Pancholi has held that the amendment made in sub-rule (3) of Rule 8 in the Gujarat State Judicial Services Rules, 2005 prescribing minimum qualifying marks of 40% in viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge is neither in violation of Articles 14 and 16 of the Constitution nor in violation of the directions issued by the Supreme Court in the  All India Judges’ Association Case.

The recruitment to the cadre of District Judge in the State of Gujarat is governed by Gujarat State Judicial Services Rules, 2005. Rule 5 provides for the method of recruitment, qualification and the age limit. Rule 8 of Rules of 2005 provides for the competitive examination. The Rules of 2005 came to be amended on 23.06.2011 by Gujarat State Judicial Services (Amendment) Rules of 2011. The grievance of the petitioner is that the recommendation for the appointment of the petitioner could not go through for the reason which the petitioner came to know later on that he failed to secure minimum 40% marks out of 50 marks which was prescribed as benchmark by the selection committee. It is the case of the petitioner that though the Rules of 2005 did not prescribe any such condition of securing benchmark at the interview level for being finally selected, such criteria was wrongly applied by the selection committee. The petitioner has filed the present petition in which the petitioner has also challenged the vires of Rule 8(3) of Amendment Rules of 2011.

The High Court has considered the following questions:

1) Whether it is open for the petitioner to challenge the criteria prescribed under amended sub-rule (3) of rule 8 after having participated in the selection process and having failed to obtain minimum qualifying marks?

2) Whether the amendment made in sub- rule (3) of rule 8 in the Rules of 2005, prescribing minimum qualifying marks of 40% in viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge is violative of Articles 14 and 16 of the Constitution of India and the directions issued by the  Apex Court in the case of All India Judges’ Association ?

The High Court has answered the first question as follows:

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Legally Explained: Irom Sharmila and what courts & judges think of the draconian AFSPA

a licence to kill’, and inconsistent with the guarantee of right to life and liberty enshrined in Article 21 of the Constitution.

The long of it says that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force even to the causing of death, against any such person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.

When you read this provision with Section 6, which protects the officer from all legal proceedings except with the previous sanction of the Central Government, that begins to hint at how draconian it can be.

OK Agreed it is draconian. Still, the SC has even recently held that it was fine, right?

Yes, on 8 July the SC even relied on its 1998 judgment in the Extra Judicial Execution Victim Families Association v Union of India case.

It was a bench of justices Madan B Lokur and UU Lalit, but their hands were tied and had to rely on the 1998 judgment, which was delivered by a Constitution bench.

A two-judge bench like them could not have overruled the 1998 delivered by a larger bench, even if they had wanted to.

But rather than refer it to a larger bench, the two-Judge bench found a easy way out: they chose an observation from the 1998 judgment, which helped to buttress their conclusion.

What was that observation?

The judges picked up the statement that every death caused by the armed forces, including in the disturbed area of Manipur, should be thoroughly inquired into if there was a complaint or allegation of abuse or misuse of power.

Other judges too have looked at AFSPA, right?

Correct.

The Justice Jeevan Reddy Commission had recommended AFSPA’s repeal, after it was set up by the Central Government under the former SC Judge in 2004.

Reddy submitted its report in 2005, recommending AFSPA’s repeal.

How did the Jeevan Reddy Commission justify its repeal?

The Commission said that the Act is too sketchy, too bold and quite inadequate in several particulars.

It clearly concluded that the 1998 judgment of the Supreme Court upholding the validity of the Act was not an endorsement of its desirability or advisability.

The court does not

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