Madhya Pradesh High Court
Smt. Sheela Gaur vs The State Of Madhya Pradesh on 6 May, 2010
Bench: S.R. Alam, Alok Aradhe
A.F.R.
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.8977/2009
Smt. Sheela Gaur
-Versus-
State of M.P. and others
PRESENT :
Hon'ble Shri Justice S.R. Alam, Chief Justice.
Hon'ble Shri Justice Alok Aradhe, Judge
Shri Atulanand Awasthi, Advocate for the
petitioner.
Shri Kumaresh Pathak, Deputy Advocate General
for the respondent No.1/State.
Shri Sheel Nagu, Advocate for the respondent
No.2.
ORDER
(06.5.2010) PER : S.R. ALAM, CHIEF JUSTICE :
In the instant petition, the short grievance of the petitioner is that in the impugned advertisement dated 29.6.2009 inviting applications for the Civil Judge, Class-II (Entry Level) Examination, 2009, no age relaxation is given in respect of widow and divorcee women and, therefore, a direction has been sought commanding the respondents to make a provision of relaxation of age in respect of widow and divorcee women candidates up to 45 years.
2. It appears that an advertisement (Annexure-P/11) was published by respondent No.2, by which applications were invited for the post of Civil Judge, Class-II. In response to the aforesaid advertisement, the petitioner who is a widow and working as a Lower Division Clerk in District Consumer Forum has submitted an application. Clause-5 of the advertisement (Annexure-P/11) Writ Petition No.8977/2009 2 prescribes that candidate must have completed the age of 21 years as on 01.01.2010, but should not have completed the age of 35 years. Clause-7 of the advertisement deals with relaxation in age limit. It, inter alia, provides that in respect of reserved category candidates or Government servant (whether permanent or temporary), the upper age limit shall be relaxable upto a maximum of three years.
3. The grievance of the petitioner is that clause-7 provides for relaxation in age only up to 3 years whereas M.P. Public Service Commission and Chhattisgarh High Court has made a provision of relaxation of age in respect of widow, divorcee and woman candidates up to 45 years. Therefore, Clause-7 is discriminatory and violative of Articles 14 of the Constitution of India.
4. When the matter was taken up as fresh on 03-9-2009 the prayer for interim-relief was declined, as this Court prima facie, was of the view that women candidates cannot claim relaxation of age in the absence of such provision in the Rules. However, it was observed that in the event of success of the writ petition appropriate relief will be granted to the petitioner subject to final result of the writ petition. The petitioner, therefore, in the absence of any interim-order could not appear in the aforesaid Examination. However, during the pendency of the writ petition another advertisement was issued on 12th April, 2010 inviting applications for Civil Judge, Class-II (Entry Level) Examination, 2010 for recruitment of Civil Judge, Class-II. The petitioner, therefore, has challenged the second advertisement by filing the amendment application.
5. We have heard Shri Atulanand Awasthi, learned counsel for the petitioner, Shri Kumaresh Pathak, learned Deputy Advocate General for the State and Shri Sheel Nagu, learned counsel appearing for the respondent No.2.
6. It appears that vide advertisement, dated 29-6-2009 (Annexure-P/1) clause-5 of the advertisement prescribes age of the Writ Petition No.8977/2009 3 candidates. It provides that the candidate must have completed the age of 21 years as on 01-01-2010 but should not have completed the age of 35 years. However, under clause-7, the candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes have been given age relaxation of three years.
7. Learned counsel for the petitioner submitted that Clause-7 of the advertisement is contrary to M.P. Civil Services (Special Provision for Appointment of Women) Rules, 1997 [hereinafter referred to as `the 1997 Rules'] which provides that relaxation of age should be given in respect of women candidates by 10 years. It is further contended that Clause-7 of the impugned advertisement is arbitrary and discriminatory.
8. On the other hand, learned counsel for the respondent No.2 submitted that the provisions of Rules of 1997 have no application in the obtaining factual matrix.
9. We have considered the submissions made on both sides.
10. The selection and appointment of Civil Judge, Class-II (Entry Level) Examination, is governed by the provisions contained in M.P. Lower Judicial Services (Recruitment and Conditions of Service) Rules, 1994 (hereinafter referred to as 1994 Rules), which made in consultation with the M.P. High Court. Rule 7 of the 1994 Rules provides the eligibility which reads as under :-
" 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 of 1st day of January of the next following year in which application for appointments are invited :
Provided that the upper age limit shall be relaxable upto a maximum of three year, if a candidate belongs Writ Petition No.8977/2009 4 to Scheduled Castes, Scheduled 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 the 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 posses a degree in law of any recognized University.
(d) He has good character and is of sound health and free from any bodily defect which renders him unfit for such appointment."
11. Thus, 1994 Rules, only gives relaxation in upper age limit upto 3 years in respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes and government servants. It further gives relaxation in upper age limit to the candidates by appropriate number of years if the recruitment has not taken place to the M.P. Lower Judicial Services. The Rule therefore does not prescribe any age relaxation in respect of widow, divorcee and women candidates. Therefore, in the absence of such relaxation having been provided in the Rules, the relief sought in this petition cannot be granted. The contention that the relaxation of age so far women candidates are concerned, is to be given by three years in view of the provisions contained in 1997 Rules, has also no merit.
12. Chapter VI of Part VI of the Constitution deals with Subordinate Courts. Articles 234 provides that appointment of persons 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 Writ Petition No.8977/2009 5 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 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 the 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 Writ Petition No.8977/2009 6 selection under 1995 Rules, was conducted by M.P. Public 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.
16. In Dr. Amilal Bhat Vs. State of Rajasthan and others (AIR 1997 SC 2964) while dealing with question whether Rule 11(3) of Rajasthan Medical Services (Collegiate Branch) Rules, 1962, which prescribes the maximum age of the applicants with reference to 1st of January following the last date fixed for receipt of applications, Supreme Court held that basically the fixing of a cut off date for determining the maximum or minimum age required for a post is in the discretion of rule making authority or the employer as the case may be. It was further observed that one must accept that such a cut off date cannot be fixed with any mathematical position or in such a manner as would avoid hardship in all considerable cases. As soon as a cut off date is fixed, there will be some persons who fall on the right side of the cut off date and some persons who will fall on the wrong side of the cut off date, that by itself would not make the cut off date per se arbitrary. Thus, from the aforesaid annunciation of law, it is apparent that it is within the discretion of the either the employer or rule making authority to fix maximum or minimum age required for a post.
Writ Petition No.8977/2009 717. It is trite law that it is for the concerned authority to make a provision for relaxation. The Court would not interfere with such a discretionary power in exercise of power of judicial review. [See :
Council of Scientific and Industrial Research and others Vs. Ramesh Chandra Agrawal and another (2009) 3 SCC 35]. Merely, because the M.P. Public Service Commission and Chhattisgarh High Court have made the provisions for relaxation in the age in respect of women candidate that itself would not render the provision in respect of relaxation of age contained in 1994 Rules arbitrary or discriminatory.
16. For the aforementioned reasons, we find that writ petition is devoid of any substance. It deserves to and is hereby dismissed.
(S.R.Alam) (Alok Aradhe)
Chief Justice Judge
A.Praj.