Madhya Pradesh High Court
Smt. Sarika Chaturvedi vs The State Of Madhya Pradesh Judgement ... on 10 October, 2013
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W.P. No.18252/2013
10.10.2013
Shri Rajesh Maindiretta, learned counsel for the petitioner.
Shri Piyush Dharmadhikari, learned Govt. Advocate for
Respondent No. 1.
Shri V. S. Shroti, Senior Advocate with Shri Vikram Johri, learned counsel for Respondent No. 2.
With the consent of parties the matter is heard finally. The petitioner has sought following reliefs :-
"(i) Certiorari, quashing the clause relating to eligibility of age provided in the advertisement (Annexure P/2) as 35 years without making any provision for relaxation for a woman candidate;
(ii) Mandamus, directing the respondents to permit the petitioner to apply for the post of Civil Judge Class-II thereby providing age relaxation of ten years;
(iii) Mandamus, directing the respondents to provide reservation of posts for woman candidates as is provided under the Rules of 1997;
(iv) Any other order/orders that this Hon'ble Court deems fit and proper in the facts and circumstances of the case may also kindly be passed."
Case of the petitioner is that for recruitment on the post of Civil Judge, Class -II (Entry Level) by the Respondent No. 2 no relaxation has been made in the upper age limit, while under the provisions of M.P. Civil Services (Special Provision for
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Appointment of Women) Rules, 1997 (hereinafter referred to as the Rules of 1997) petitioner is entitled for special relaxation in the age for 10 years. It is submitted that this petition may be allowed and the petitioner may be permitted to participate in the process for appointment on the post of Civil Judge Class - II (Entry Level).
Shri V. S. Shroti, learned Senior Advocate for Respondent No. 2 opposed the aforesaid contention. It is submitted by him that by the recruitment is going on under the provisions of the Madhya Pradesh Lower Judicial Service (Recruitment and Conditions of Service) Rules 1994 (hereinafter referred to as the Rules of 1994), in which provision has been made under Rule 7, about age limit of the candidates for appointment on the post of Civil Judge Class II. Under the rules for the candidates belonging to Schedule Castes, Schedule Tribes or Other Backward Classes a special relaxation of three years in the age has been made. It is submitted by Shri Shroti that the controversy involved in this case has already been considered by the two Division Benches of this Court; one in W. P. No.7783/2006 (Smt. Sangita Singh Parihar Vs. The Chairman, M.P. Public Service Commission and others decided on 10.8.2006 and another in W.P. No.8977/2009 (Smt. Sheela Gaur Vs. State of M.P. and others decided on 6.5.2010.
Stating aforesaid, it is submitted by Shri Shroti, that this petition has no merit and may be dismissed.
Learned counsel appearing for the petitioner again re- agitate his contention. It was also submitted that in similar
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circumstances High Court of Chhattisgarh has extended benefit of age relaxation to the women in the advertisement Annexure P-3, so the same relaxation may be extended to the petitioner.
In this case it is not in dispute that the petitioner is aged 36 years and is not eligible to appear in the examination for the post of Civil Judge Class-II. Relevant provision of eligibility under the Rules of 1994 provides thus :-
"7. Eligibility. - No person shall be eligible for appointment by direct recruitment to posts in category (i) of Rule 3 (1) unless:-
(a) he is a citizen of India;
(b) he has attained the age of 21 years and not completed the age of 35 years on the first day of January of the next following year in which application for appointment are invited;
Provided that the upper age limit shall be relaxable up to a maximum of three years if a candidate belongs to Schedule Castes Schedule Tribes or Other Backward Classes;
Provided further that the upper age limit of a candidate who is a Government Servant (whether permanent or temporary) shall be relaxable up to 38 years;
Provided further that upper age limit of a candidate shall be relaxable by appropriate number of years, if no recruitment takes place for one year or more, to the Madhya Pradesh Lower Judicial Service.
(c) he possess a degree in Law of any recognized University;
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(d) he has good character and is of sound health and free from any bodily defect, which renders him, unfit for such appointment."
The aforesaid provision specifically provides that eligibility of the person shall be, if he has attained the age of 21 years and not completed the age of 35 years. However, asper proviso the candidate belonging to Schedule Castes, Schedule Tribes or Other Backward Classes have been given relaxation of three years under same Rules.
Rule 4 of the Rules of 1997 provides thus :-
"4. Age relaxation. - There shall be age relaxation of ten years for women candidates for direct appointment in all posts in the services under the State in addition to the upper age limit prescribed in any service rules or executive instructions."
The aforesaid Rule 4 of Rules of 1997 though gives special relaxation of 10 years to the women candidates for direct appointment in all posts in the services under the State, but in the present case, the recruitment is in the services of Civil Judge Class II for which special rules are framed.
A Division Bench of this Court in the case of Smt. Sangita Singh Parihar (supra) has considered this issue and considering the controversy held thus :-
"Mr. Datt, learned counsel for the petitioner submitted that for appointment to the post of other Civil Services in the State of Madhya Pradesh reservation and age relaxation are made in favour of women candidates in accordance with the provisions of M.P. Civil
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Services (Special Provisions for appointment of women) Rules 1997, and hence such reservation and relaxation of age should have been made in favour of women for appointment to the posts of Civil Judge, Class 2 in the State Judicial service.
Mr. Hemant Shrivastava, learned counsel appearing for the M.P. Public Service, on the other hand, submitted that the M.P. Civil Services (Special provisions for appointment of women) Rules, 1997 per se do not apply to appointment of Civil Judge, Class 2 in the State Judicial Service. He submitted that under Article 234 of the Constitution, appointment of persons other than District Judges to the judicial service of the State is to be made in accordance with the Rules made by the Governor of the State after consultation with the State Public Service Commission and the High Court and accordingly the M.P. Lower Judicial Service (Recruitment and Conditions of Service) Rules 1994 have been made by the Governor of the State of M.P. in consultation with State Public Service Commission and High Court under Articles 234 of the Constitution and these rules do not provide for any reservation or relaxation of age in favour of women.
Mr. Shrivastava cited the decision of the Supreme Court in State of Bihar and another Vs. Balmukund Sah and others (2000) 4 SCC 640 in which it has been held that for recruitment of judicial officers other than District Judges a complete scheme is provided under Article 234 of the Constitution wherein the Governor of the State can make such appointments in accordance with the rules framed by him after consulting the State Public Service Commission and the High Court and
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therefore unless such rules framed under Article 234 of the Constitution in consultation with the State Public Service Commission and the High Court provide for reservation and relaxation for women, these general rules made under Article 309 of the Constitution for reservation in the State Public Services will not apply to the recruitment to the post of judicial service.
On an another occasion, a Division Bench of this Court in the case of Smt. Sheela Gaur (supra) considered similar controversy and after considering relevant provisions held thus :-
"12. Chapter VI of Part VI of the Constitution deals with Subordinate Courts. Articles 234 provides that appointment of person other than District Judges to the judicial services by State shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Articles 235 provides that control over District Court and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to judicial services of State and holding any post inferior to the post of District Judge shall vests in the High Court. Articles 236 deals with the topic of 'Interpretation' and amongst others, defines by sub-Articles (b) the expression "judicial service" to mean "a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge."
It becomes, therefore, obvious that the framers of the Constitution separately dealt
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with 'Judicial Services' of the State and made exclusive provisions regarding recruitment to the posts of District Judges and other civil judicial posts inferior to the posts of the District Judge.
13. The service rules framed for appointment to public service by the State Government do not apply in respect of judicial services. Our aforesaid view is fortified by a decision of the Apex Court in State of Bihar and another Vs. Bal Mukund Sah and others (AIR 2000 SC 1296), wherein their Lordships have held that the provisions of Bihar Reservation of Vacancy in posts and services (for Scheduled Castes/Scheduled Tribes and Other Backward Classes) Act, 1991, has no application to the recruitment of judicial officers in State of Bihar since aforesaid rules have not been made in consultation in the High Court as required under Articles 233 and 234 of the Constitution of India.
14. It would be useful to take note of the fact that selection and appointment to the post of Civil Judge were earlier made under M.P. Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1995, whereunder maximum age prescribed for general category candidates was 30 years and 32 years for candidates belonging to Scheduled Castes and Scheduled Tribes category. No relaxation for women candidates was provided. The aforesaid Rules were repealed by M.P. Lower Judicial Services (Recruitment, Conditions of Service) Rules, 1994 under which impugned advertisement has been issued. The examination and selection under 1995 Rules, was conducted by M.P. Public
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Service Commission in the year 1996, 1998, 2001, 2006 and 2007 and no relaxation to women candidates was provided in age limit in the absence of any provision for such relaxation in 1994 Rules.
15. Thus, 1997 Rules have not been in consultation with M.P. High Court as required under Articles 233 and 234 of the Constitution of India. Therefore, in view of provisions contained in Articles 233 and 234 of the Constitution of India and the exposition of law made by the Apex Court in Bal Mukund Sah (supra), the provisions contained in 1997 Rules cannot be applied. If benefit of extension of upper age limit by ten years is extended to women candidates, the same would be violative of Articles 233 and 234 of the Constitution of India and, therefore, the argument made by learned counsel for the petitioner that Clause-7 of the advertisement being contrary to 1997 Rules is discriminatory and violative of Article 14 of the Constitution of India is misconceived and cannot be accepted."
The controversy involved in the present case has already been considered by the two Division Benches of this Court and as per the statutory provisions also until and unless there is a relaxation in the rules namely M. P. Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994 in respect of age, petitioner is not entitled to participate in the process of selection of Civil Judge, Class-II (Entry Level).
Though, a relaxation has been given by the High Court of Chhattisgarh, but the said advertisement shall not be applicable to the High Court of Madhya Pradesh, when the recruitment has
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been made under the Rules of 1994.
In view of the aforesaid, we do not find any merit in this petition and the same is accordingly dismissed with no order as to costs.
(Krishn Kumar Lahoti) (Subhash Kakade)
Acting Chief Justice Judge
Anchal