Rajasthan High Court - Jaipur
Sudarshan Kumar Sharma vs State Of Raj. And Ors. on 8 March, 1996
Equivalent citations: 1997(1)WLC428, 1996(1)WLN607
JUDGMENT N.K. Jain, J.
1. This writ petition under Article 226 of the Constitution of India has been filed seeking a direction to be issued to the respondents to appoint the petitioner on the post of Munsif and Judicial Magistrate w.e.f. the date persons ranking below in the merit list of selected candidates forwarded by the Rajasthan Public Service Commission were appointed and he be assigned due seniority.
2. The facts which are necessary to be noticed for the disposal of this writ petition briefly stated are that in pursuance of the advertisement for selection to the Rajasthan Judicial Service issued on 17.5.1992 by the respondent No. 1, the State of Rajasthan, the petitioner applied for recruitment to Rajasthan Judicial Service. The petitioner appeared in the written examination, result of the examination was published in the Rajasthan Patrika on 4.12.1992 and he was declared successful. The petitioner was intimated vide letter dated 23.12.1992 that his candidature has been cancelled since he is overage on 1.1.1993 and as such he would not be called for interview. The letter/order dt. 23.12.1992 was challenged by the petitioner by way of filing a writ petition which was registered as D.B.C.W. Petition No. 75/93 Sudarshan Kumar v. The Rajasthan Public Service Commission and Anr. wherein it was contended that Rule 10 of the Rajasthan Judicial Service Rules, 1955 in so far as it fixes the 1st of January of the year succeeding the year in which the examination is held as the relevant date for computing the upper age limit to be ultravires, and as such the order dt. 23.12.1992 be quashed. The Division Bench of this Court vide order dt. 15.1.1993 while issuing notice ordered that the R.P.S.C, may interview the petitioner on the last date of the holding of the interviews or on any other date which is convenient to it, the result will, however, not be declared. In compliance of the order of this Court dt. 15.1.1993, the petitioner was interviewed. In the meantime, the Government vide order dated 23.2.1993 bearing no. 9(1) Nyay/92 informed the R.P.S.C. that for 1992 selection the upper age limit had been relaxed in respect of one Shri Harisingh Fojdar and other similarly situated six candidates, the Division Bench decided the writ petition on 29.3.1993 observing that "in view of the fact that relief has already been given to the petitioner by the State Government, the writ petition is not pressed. It is disposed off. Consequently, the R.P.S.C. is directed to declare the result of the petitioner as early as possible." It is also alleged that the petitioner secured 148 marks out of 300 in the written examination and 20 marks out of 35 in viva voce. The petitioner has further alleged that he received a letter dated 13.5.1993 in respect of character verification informing that he had been selected by the R.P.S.C. for the post of Munsif and Judicial Magistrate and thereafter vide communication dated 13.5.1993 he was informed to get himself medically examined. The State Government issued appointment order dated 8.9.1993 whereby 56 condidates were granted appointment on the post of Munsif and Judicial Magistrate and it was mentioned in that order that so far as the appointments of Shri Moni Babu Sharma and Shri Sudarshan Kumar Sharma are concerned, the concurrence from the Hon'ble High Court has not been obtained as such they are not being given appointments. On having come to know this, the petitioner made a representation and also served a notice for demand of justice. Being aggrieved with the action of the respondents of not giving him appointment on the post of Munsif and Judicial Magistrate, the petitioner has approached this Hon'ble Court.
3. In pursuance to the show cause notice issued on 27.5.1994 by this Hon'ble Court, the respondents No. 1, 2 and 3 have filed their separate replies.
4. The respondent No. 1 in its reply has stated that the Government granted relaxation in the maximum age limit vide order dated 23.2.1993 only for the Rajasthan Judicial Service Examination, 1992 for six persons including the petitioner and the High Court declined to concur or approve the relaxation granted by the Government since the age limit could only be relaxed in consultation with the High Court in view of Rule 32 of the Rajasthan Judicial Service Rules, 1955 (hereinafter referred to as the Rules of 1955). It has also been stated that Rule. 21 of the Rules of 1955 which deals with appointment on the post of Rajasthan Judicial Service and 32 of the said Rules of 1955, are mandatory provisions and makes obligatory for the Government to consult the High Court and obtain its views before appointing Munsif and Judicial Magistrate under the Rules.
5. The respondent No. 2 in its reply has raised preliminary objections regarding the maintainability of the writ petition stating that in the earlier writ petition filed by the petitioner bearing no. 75/93 the petitioner had not impleaded the High Court, the respondent No. 2 as party though relief of giving appointment was sought, therefore, the orders passed by the Division Bench are not binding on the respondent no.2. It has also been stated that the recommendations of the High Court are binding on the State Government as provided under Article 234 read with Article 235 of the Constitution and as per the R.J.S. Rules of 1955 and since the matter of age relaxation was neither initiated nor recommended by the High Court to His Excellency the Governor in the case of the petitioner, therefore, the question of grant of age relaxation does not arise. It has been further staled that the subsequent consultation is neither legal nor proper but still the High Court considered the matter and strongly disapproved the orders of the Government. Therefore, the orders passed by the answering respondent are solely legal and justified otherwise also this Court cannot act as a court of appeal under Article 226 of the Constitution of India. So far as the merits of the case are concerned, it has been stated that Rule 32 nowhere envisages regarding the age relaxation but even assuming that the said provision can be invoked in the matter of age relaxation for appointment then also the same could not have been granted unless the process has been initiated by the respondent No. 2 by recommending the case for grant of the same. The respondent No. 2 has also stated that age relaxation was granted by His Excellency the Governor without any power in the Rules of 1955 and without any consultation with the answering respondent, which is illegal. It has further been stated that after receiving the letter from the Government the answering respondent again considered the prayer of the petitioner and rejected the prayer for review of the earlier decision after deciding the issue in Full Court by circulation which was conveyed to the Government vide letter dt. 7.11.1994 (Anx. R/2/2).
6. The respondent no. 3 in its reply has stated that the application forms were scrutinized only of successful candidates in the written examination before calling the candidates for interview and on scrutiny the petitioner was found to be overage by one year three months and 16 days, therefore, his application form was ejected vide letter dated 23.12.1992.
7. The petitioner has filed rejoinder to the reply stating that in identical matter filed by one Babulal Gehlot at Jodhpur bearing P.B.C. Writ Petition No. 3010/92 decided on 28.4.1993, Division Bench of this Court while observing that the age has been relaxed by His Excellency the Governor, the result of the interview be declared. It has also been ordered that the result of the candidate as also of similarly situated candidates be declared forthwith. According to the petitioner the order dated 28.4.1993 was not challenged by the High Court even when it was party to the writ petition. Therefore, having lost the opportunity to challenge the order passed by the Division Bench in the case of Babulal Gehlbt, the respondent No. 2 is bound by the judgment. It has been stated that with the declaration of the result the eligibility of the petitioner was no longer under any cloud and the respondents cannot go behind the order dated 29.3.1993 and they can't take a stand that the order dt. 23.2.1993 granting relaxation in age was bad in law, particularly when there is no reason to deny appointment to the petitioner who has come in the merit list within the first ten candidates.
8. Learned counsel for the petitioner has contended that for the appointment to the Rajasthan Judicial Service consultation with the High Court as provided under Articles 234 and 217 for the appointment of District Judges and High Court Judges is not necessary as for the appointment to the post of Rajasthan Judicial Service it involves recruitment process and one has to pass written examination and interview etc. and only then he can be appointed to the post of Munsif and Judicial Magistrate if he comes in the merit. He has submitted that the suitability of the petitioner has already been judged at the time of interview by a High Level Interview Board wherein High Court Judge was also a member, therefore, petitioner who has come in the merit list at S.No. 10 is eligible to be appointed. He has also submitted that only for the framing of the Rajasthan Judicial Service Rules it was necessary for His Excellency the Governor to consult the High Court which has already been made and there was no necessity for His Excellency the Governor to consult the High Court thereafter for the recruitment to the Rajasthan Judicial Service. He has further submitted that consultation does not mean prior consultation it could be made after the relaxation was given by His Excellency, which is clear from the language of Rule 32 itself. Mr. Singh has contended that in the writ petition bearing no. 75/93 filed by the petitioner earlier, Division Bench of this Court directed the R.P.S.C. to interview the petitioner and thereafter while deciding the matter directed the R.P.S.C. to declare the result of the petitioner as early as possible which means that the Division Bench has already considered the candidature of the petitioner. He has contended that in the identical matter filed at Principal Seat Jodhpur Division Bench has directed that the result of this candidate as also of similarly situated candidates be declared forthwith against which neither any review before this Court nor any special leave petition was preferred before their lordships of the Supreme Court challenging the order dated 28.4.1993, therefore, that has become final and now at the stage of appointment as provided under Rule 21 the respondents can't deny the appointment to the petitioner who is meritorious and will not get any chance in future due to over-age, in the garb of alleged illegal relaxation granted by His Excellency which was not 'objected to by the respondents at the point of time that too when it was within their knowledge. He has contended that even it consultation was necessary then too it was not a mistake of the petitioner and he cannot be punished for the alleged error committed by the authority over which the petitioner had no control. He has relied on Biswanath Khemka v. Emperor AIR 1945 Federal Court-67, N. Devashayam v. State of Madras AIR 1958 Madras-53, Supreme Court Advocates on Record Association and Ors. v. Union of India , Ram Gopal Chaturvedi v. State of M.P. and Chandramouleshwar Prasad v. The Patna High Court .
9.. Mr. P.S. Asopa, learned counsel for the respondent No. 2 has contended that the order dated 23.2.1993 is illegal inasmuch as His Excellency the Governor is not empowered to relaxe the maximum age limit as that can only be done in consultation with the High Court and consultation is a part of decision making process. He has urged that since the relaxation in maximum age limit was granted by his Excellency the Governor vide order dated 23.2.1993 to the petitioner without consulting the High Court, the petitioner cannot take any advantage since Rule 32 of the Rules of 1955 specifically provides for consultation with the High Court. He has further contended that the petitioner is not entitled to be considered as he was not even eligible and had become over-age on 1st of January, 1992, therefore, his attaining a position in the merit list within ten candidates is of no help. Mr. Asopa has contended that the High Court even then got the matter examined by a committee of two Hon'ble Judges, report of that committee was accepted by the Full Court and, therefore, the State Government has rightly not given appointment to the petitioner. He has relied on Chandramouleshwar Prasad v. The Patna High Court and Ors. State of Jammu & Kashmir v. A.R. Zakki and Ors. 1992 Supp (1) SCC 548 and State of Kerala v. A Lakshmikutty and Ors. .
10. Mr. parihar, learned counsel appearing on behalf of the R.P.S.C. and Mr. K.S. Rathore, appealing on behalf of the State of Rajasthan have adopted the arguments of Mr. Asopa.
11. I have given my thoughtful consideration to the rival contentions made at the Bar and Perused the relevant provisions of law as also the relevant rules and I have perused the case law cited at the Bar carefully.
12. The controversy which arises for determination in this case is whether before passing the order dated 28.2.1993 granting relaxation in the maximum age limit to the petitioner, it was necessary for His Excellency the Governor to consult the High Court or not.
13. For proper adjudication of the controversy involved in this case, it would be appropriate to read the relevant rules of the Rules of 1955 which read as under
10.Age-A candidate for recruitment to the service must not have attained the age of 35 years on the fist day of January next following the date of commencement of the examination by the commission for recruitment to the service-Provided
(ix) Notwithstanding anything contained contrary in these rules, in the case of persons serving in connection with the affairs of the Stage in substantive capacity, the upper age limit shall be 40 years.
21 Appointment-(1) On receipt of the list prepared by the Commission under Rule 19, the Rajpramukh shall consult the Court and shall after taking into consideration the views of the Court and subject to the other provisions of these rules select candidates for appointment in substantive, temporary and officiating vacancies from among those who stand highest in order of merit in the said list provided that he is satisfied that such candidates are duly qualified in other respects.
(2) A temporary or officiating vacancy in the service may, upon the non-availability of any candidate in the list prepared under Rule 19, be filled by the Rajpramukh in consultation with the Court by appointing there to any suitable person possessing necessary qualifications prescribed under these rules.
%32 Exceptions-(1) Nothing in these rules shall be construed to limit or abridge the power of the Rajpramukh to deal, in consultation with the Court, with the case of any person governed by these rules in such manner as may appear to him to be just and equitable-
Provided that, where any of the foregoing rules is applicable to the case any person, the case shall not be dealt with in a mannerless favourable to him than that provided by that rule.
(2) Where it appears necessary to do so, the Governor may, on the recommendation of the Court make any temporary appointment to the Service by deputation or otherwise from amongst the R.A.S. Officers in relaxation of the rules.
Articles 217, 234 and 235 of the Constitution of India referred to are also reproduced hereinafter-
217 (1) Every Judge of a High Court shall be appointed by the Resident by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge as provided in article 224, and in any other case, until he attains the age of sixty-two years-
234 Recruitment of persons other than district Judges to the judicial service-Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with 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.
Control over subordinate courts
235. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
A careful reading of the aforesaid rules which are relevant for the present purpose make it clear that the candidate who may not have attained the age of 35 years on the 1st of Jan. next following the date of commencement of examination by the Commission. In the proviso attached to this rule it has been provided that in the case of person serving in connection with the affairs of the State in substantive capacity the upper age limit shall be 40 years. Rules 21 envisages that the Governor on receipt of the list prepared by the Commission under Rule 19 shall consult the Court and after taking into consideration the views of the Court subject to the other provisions of the rules select candidate for appointment in substantive, temporary and officiating vacancies from amongst those who stand highest in order of merit in the list. Rule 32 empowers the Government to deal with the case of any person governed by these rules in the manner as may appear to him just and proper in consultation with the Court. It has also been provided that the Governor may make any temporary appointment to the service on the recommendation of the Court.
14. In State of Kerala v. A.Lakslmikutty (supra) their lordships of the Supreme Court while considering the word "consultation" has observed as under-
27. The Constitution of India provides in Articles 124, 217 and 233(1) dealing with appointment of Judges from the Supreme Court down wards and Article 222 dealing with transfer of a Judge from one High Court to another for a very delicate process of consultation between the executive and the judiciary. The word 'consultation' in Article 233 must bear the same meaning as in these other provisions. The plain meaning of the word 'consult' as given in Shorter Oxford English Dictionary, Vol. 1 at P. 409 is-'to take counsel together, deliberate, confer and the word 'consultation' means-'the action of consulting or taking counsel together; deliberation, conference. The word consultation therefore implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least a satisfactory solution.
15. The petitioner who was overage on the first day of January next following the date of commencement of the examination by the Commission for recruitment to the service which in the present case is 1.1.1993 was not eligible to appear in the interview but he was granted relaxation in the maximum age limit by His Excellency the Governor. Though under the Rules of 1955 there is no rule which empowers any authority for relaxation of age beyond the maximum age limit provided under the Rules of 1955. However, the Governor being the head of the State is empowered to deal with the case of any person as may appear to him to be just and equitable in consultation with the High Court and may make temporary appointment to the Service on the recommendation of the Court as provided in Rule 32 of the Rules of 1955. The relevant words of Rule 32 for the purpose are "in consultation with the Court" and the consultation is a part of the decision making process which has to be taken before taking any decision. In Rule 32(2) of the Rules of 1955 the words which are relevant for the purpose are "on the recommendation of the Court". The underlying idea of the Rule 32 is that the Governor should make up his mind after there has been a consultation with the High Court. In the instant case neither the Governor consulted the High Court before passing the order dated 23.2.1993 granting relaxation in the upper age limit to the petitioner nor the High Court recommended for relaxation, in the upper age limit of the petitioner. Therefore, the contention of the learned counsel for the petitioner that it was not necessary for the Governor to consult the High Court before passing the order dt. 23.2.1993 has no substance.
16. So far as the argument that at the most the provision of consultation is directory and not mandatory which could be cured thereafter, is also not sustainable. As already stated consultation is an integral part of decision making process and not merely an empty formality which can be made thereafter. If the suggestion of the learned counsel for the petitioner is accepted then the words used in the Rule 32 "in consultation with the Court" will lose their significance. Even then the Full Court on the review petition made by the petitioner considered the matter and declined to give concurrence. Though His Excellency the Governor is appointing authority under the Rules of 1955 but the exercise of the power of appointment by the Governor is conditioned by His consultation with the High Court, as provided under the said Rules and the procedure laid down in the rules has to be followed. In this case the High Court never desired for relaxation in the maximum age limit and His Excellency also did not consult the Court before relaxing the upper age limit which was necessary as per the rules, therefore, the relaxation granted in favour of the petitioner in his upper age limit cannot be said to be according to the rules. Learned counsel for the petitioner tried to make distinction between the appointments of High Court Judges and District Judges with that of the recruitment to the Rajasthan Judicial Service on the ground that in the appointment of High Court Judges and District Judges which are made under Articles 217 and 234 the words used are "after consultation" whereas in these rules there are no such words. As already stated 'in consultation' with 'means prior to passing of any order under the rule, the consultation has to be made and the distinction which the learned counsel for the petitioner wants to draw does not take case of the petitioner any-where.
17. It has been next contended that the consultation was necessary only at the time of framing rules which had already been made and for the purpose of recruitment no consultation was required to be made, as is necessary for the purpose of District Judges & High Court Judges since the recruitment in the Rajasthan Judicial Service involves written examination and interview as well. The argument of the learned counsel for the petitioner does not appeal me for the simple reason that in the Rule 21 which deals with appointment and Rule 32 which provides exceptions, it has been specifically provided that that the Government will act in consultation with the Court which enjoin on the Governor to make appointment or to pass any order in consultation with the Court, which is the appropriate authority to give advice to him. There is no other provision in the Rules of 1955 empowering the Governor except Rule 32 to grant relaxation to the petitioner in the upper age limit wherein the legislature has used the words "in consultation wit". Therefore, it cannot be said that for the purpose of recruitment to the Rajasthan Judicial Service consultation was not necessary, since it involves recruitment process.
18. So far as the contention that the suitability of the petitioner has been judged by the Hon'ble Judges of this Court in the interview and, therefore, now the respondents cannot deny him appointment on the ground that he is not eligible is concerned, the same has no substance since the petitioner was not even within the prescribed age limit and has already crossed the maximum age limit. Therefore, passing of written examination and interview wherein Judges of this Court were present does not give any right in favour of the petitioner inasmuch as the petitioner was not even eligible and had already become overage on the stipulated date, as per Rule 10 of the Rules.
19. Learned counsel for the petitioner has relied on the orders passed by the Division Bench of this Court in D.B.C.W. Petition No. 75/93 filed by the petitioner himself earlier wherein validity of Rule 10 of the Rules of 1955 was challenged and order dated 23.12.1992 was sought to be quashed whereby he was informed that he would not be called for interview. He has submitted that since this Court directed the Rajasthan Public Service Commission to declare the result of the petitioner, the eligibility of the petitioner has been approved and it cannot say that the petitioner was not eligible and go behind from its earlier stand. Undoubtedly, this Court vide interim order dated 15.1.1993 issued notice to show cause and directed the R.P.S.C. to interview the petitioner and in compliance of the order of this Court, the petitioner was interviewed and thereafter Government granted relaxation to the petitioner on the basis of which the writ petition was disposed of with a direction to the R.P.S.C. to declare the result of the petitioner. It may be stated that the functions of this Court in administrative side and judicial side are two distinct responsibilities with which this Court has been entrusted by the Constitution being one of the three pillars of the democracy. Administrative and supervisory powers as provided under Article 235 have been given for the appointment in the Rajasthan Judicial Service and Higher Judicial Services etc. by the Constitution with a view that it being the expert body is more familiar than His Excellency with the affairs and efficiency of the persons to be assigned with the important responsibilities. Both these issues cannot be intermingled with each other and in the judicial side only the questions raised are to be decided according to law. Therefore, the petitioner cannot take any advantage of the order passed on 29.3.1993 disposing of the writ petition while giving a direction to the R.P.S.C. to declare the result, particularly when no such question was raised or decided by this Court at that point of time. That apart the High Court was not even a party to the writ petition no. 75/93. Likewise, the petitioner can't take any advantage of the order passed in the case of Babulal Gehlot's case (D.B.C.W. Petition No. 3010/92) on 28.4.1993 for the reason that the question of consultation was not raised and decided by the Division Bench. Thus, mere non-filing of S.L.P. or review petition does not make him eligible on basis of order made in the case of another person particularly when by the said order the Division Bench has not made any declaration making eligible all the persons for all the purposes. That apart it is well settled that theory of estoppel cannot be pressed into service against the settled provisions of law. As stated earlier the petitioner was not eligible being over age by one year three months and 16 days. If has been submitted by the counsel for the petitioner that the petitioner is a meritorious candidate as he came within ten candidates in the merit list out of 59 candidates and he should not be deprived only on the minor illegality over which the petitioner was not having any control particularly when persons similarly situated have been given appointment. In this regard suffice it to say that the procedure prescribed in the law has to be followed particularly in such matters and procedural lapse/error may play a major role depending upon the facts and circumstances of the given case. In the instant case since the order dated 23.2.1993 as stated is not passed according to law, the petitioner cannot be permitted to avail benefits flowing out of it although he may be meritorious and had no control over the authority. It is pertinent to note that many persons who had become over age were not permitted even to appear in the interview as per conditions of advertisement. Similarly the possibility that many a candidates who might be meritorious could not have even filled the forms looking to the fact that they are not eligible since they had become overage. Therefore, allowing such ineligible persons permitted without proper authority will tantamount to creating complications in achieving the true object of getting true persons appointed as judicial officers for due administration of justice.
20. As regards the decision rendered in D. Devassayam v. State of Madras (supra) cited by the learned counsel for the petitioner, the same is not applicable in this case. The question for consideration was whether the failure to consult the Public Service Commission render the appointment invalid. The Single Bench observed that since appointed officers were subsequently interviewed by the Public Service Commission and their appointments were confirmed, the defect was removed. Whereas in the instant case, the consultation was neither made at the point of time nor the High Court gave concurrence thereafter. The other cases cited by the learned counsel for the petitioner are also not of any help to the petitioner, so it is not necessary to discuss them in detail.
21. In view of what I have disscused above, in the absence of any consultation, it cannot be said that the petitioner has been illegally denied appointment to the Rajasthan Judicial Service. Under the circumstances, I find no good ground to interfere under Article 226 of the Constitution of India. As such no relief as prayed for can be granted to the petitioner.
22. No other point has been pressed before me.
23. Accordingly, the writ petition has no force and the same is hereby dismissed.