Madhya Pradesh High Court
Smt Bhagyashree Syed. vs The State Of Madhya Pradesh on 6 April, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No.7801/2018
Smt. Bhagyashree Syed ................... Petitioner
Vs.
The State of Madhya Pradesh
and others ................. Respondents
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Coram (Division Bench):
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla J.
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Shri Anil Khare, Senior Advocate with Shri H. S. Chhabra, Advocate for
the petitioner.
Shri Pushpendra Yadav, Dy. Advocate General for the respondents/State.
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Whether approved for reporting - Yes
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Law laid down :-
The applicability of the Madhya Pradesh Civil Services (General Conditions of
Service) Rules, 1961 to the candidate seeking appointment as direct recruitment (Entry
Level) post in the Higher Judicial Service cannot be said to be illegal. The argument that such
Rules have been framed without consultation with the High Court is not tenable as the High
Court in the advertisement itself has stipulated that the candidate will be liable to be
disqualified, if he does not fulfill the conditions of such Rules. Therefore, the independence
of judiciary is not impinged when the High Court itself makes the condition of
disqualification in the said Rules applicable for the purpose of recruitment.
The M.P. Higher Judicial Service (Recruitment and Conditions of Service) Rules,
1994 deal with recruitment and promotion which is substantial provision. Whereas, the
Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961 does not relate
to core of judicial service but relates to procedural aspects which does not cast any shadow
on the independence of judiciary.
Mere participation in the written examination and the interview will not make a
candidate eligible if in terms of the advertisement itself the candidate was not eligible for
appointment. There cannot be any estoppel against the respondents to appoint petitioner even
if she is disqualified to be appointed in terms of the Madhya Pradesh Civil Services (General
Conditions of Service) Rules, 1961.
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Significant Paragraphs - 10, 14, 16, 17.
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ORDER
(Passed on this 6th day of April, 2018) Per Hemant Gupta, Chief Justice The challenge in the present petition is to the proviso to Rule 3 and Rule 6 (6) of the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961 (hereinafter referred to as the 1961 Rules) in relation to its application to Madhya Pradesh Judicial Service. The relevant Rules read as under :-
"3. Scope of application. - The rule shall apply to every person who holds a post or is a member of a service in the State, except -
(a) person whose appointment and conditions of employment are regulated by the special provisions of any law for the time being in force;
(b) persons in respect of whose appointment and conditions of service special provisions have been made, or may be made hereafter by agreement;
(c) persons appointed to the Madhya Pradesh Judicial Service:
Provided that in respect of any matter not covered by the special provisions relating to them, their services or their posts, these rules shall apply to the persons mentioned in clauses (a), (b) and (c) above.
6. Disqualification. - (1) No male candidate who has more than one wife living and no female candidate who has married a person having already a wife living shall be eligible for appointment to any service or post:
Provided that the Government may, if satisfied that there are special grounds for doing so, exempt any such candidate from the operation of this rule.
(2) xxxxx (6). No candidate shall be eligible for appointment to a service or post who has more than two living children one of whom is born on or after the 26th day of January, 2001,
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Provided that no candidate shall be disqualified for appointment to a service or post, who has already one living child and next delivery takes place on or after the 26 th day of January 2001, in which two or more than two children are born."
(emphasis supplied)
02. The challenge arises out of the fact that an advertisement was issued on 9.3.2017 to fill up 42 post of District Judge (Entry Level) in the pay- scale of Rs.51550-1230-58930-1380-63070/- in the cadre of Higher Judicial Service by direct recruitment from amongst the eligible Advocates under Rule 5 (1)(c) of the M.P. Higher Judicial Service (Recruitment and Conditions of Service) Rules, 1994 (for short "the Rules").
03. The petitioner appeared in the preliminary examination as a candidate for appointment to the service and was successful. It is thereafter, the petitioner submitted her application for main examination. In the application, there was a column seeking information about the number of children as also the number of children born after 26.1.2001. She disclosed that she had 3 children and one of them was born after 26.1.2001. She qualified the main examination as well. Thereafter she was asked to submit Personal Information in the form which was available on the website before appearing for interview. Again, she submitted information that she had 3 children out of which one was born after 26.1.2001. After the Personal Information was uploaded she was issued with an admit card and then she appeared for interview on 16.9.2017. The grievance of the petitioner is that her name was not in the provisional select list of the successful candidates. On enquiry, the petitioner was informed that her candidature has been cancelled. On the basis of information obtained under Right to Information Act, the petitioner was informed that her candidature has
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been cancelled in view of Clause 3 of the advertisement and in view of Rule 6 (6) of 1961 Rules.
04. The argument of learned counsel for the petitioner is that 1961 Rules have been framed without consultation with the High Court as mandated by the Article 233 of the Constitution of India. Since the Rules have not been framed in consultation with the High Court, therefore, such Rules impinge upon independence of judiciary. It is contended that proviso to Rule 3 and Rule 6 (6) of 1961 Rules are beyond the legislative competence of the State being contrary to the Articles 233 and 234 of the Constitution of India having been framed without consultation with the High Court. Petitioner relies upon the Constitution Bench judgment reported as (2000) 4 SCC 640 (State of Bihar and another Vs. Bal Mukund Sah and others).
05. The advertisement dated 9.3.2017 published by Madhya Pradesh High Court has a clause pertaining to disqualification of the candidates. The relevant condition read as under :-
"3. Disqualification :-
In any of the following cases, Applicants/Candidates may be liable for prosecution and/or cancellation of their candidature for selection may be canceled and he/she may be prohibited, temporarily or for any specific time period, to appear in any Examination conducted by M.P. High Court :-
(a) If he or she does not fulfill the provisions of M.P. Higher Judicial Service Rules 1994 and M.P. Civil Services (General Conditions of Service) Rules, 1961, or........."
06. Learned counsel for the petitioner argued that to ensure independence of judiciary, Articles 233 and 234 of the Constitution of India
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contemplate that service conditions of the Judicial Officers shall be governed by the Rules published after consultation with the High Court. Since the 1961 Rules have not been published in consultation of the High Court, therefore, disqualification mentioned therein cannot be extended to the members of the Judicial Services. It is pointed out that in the Rules, there is no reference of applicability of the 1961 Rules to the members of Judicial Service, therefore, even if condition is incorporated in the advertisement, such condition is not in terms of the constitutional scheme, therefore, not legal. It is contended that Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2017 has been published on 13.3.2018 repealing the Rules, which specifically contemplates that the conditions of the service of member of the cadre shall be regulated by the Rules as mentioned in Rule 13 including the 1961 Rules. Therefore, the absence of applicability of similar clause in the Rules is indicative of the fact that the 1961 Rules have not been adopted by the High Court and/or framed in consultation with the High Court.
07. It is also contended that in W.P. No.15680/2017 (Manoj Kumar Vs. State of Madhya Pradesh and another) decided on 23.2.2018, the appointments made to the Higher Judicial Service in terms of Rules in pursuance of advertisement dated 23.11.2015 was allowed wherein the challenge was to the termination of services of two Judicial Officers who had more than two children and one of them was born on or after 26.1.2001. This Court in the aforesaid judgment has not examined the legality of proviso to Rule 3 and the Rule 6 (6) of the 1961 Rules, therefore, the said judgment is not applicable to the facts of the present case.
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08. Article 233 contemplates that the appointment of persons to be, and the posting and promotion of District Judges shall be made by the Governor of the State in consultation of the High Court exercising jurisdiction in relation to such State. Whereas Article 234 contemplates that the appointments of a person other than the District Judges to the judicial service of the 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.
09. The 1961 Rules provide that such Rules will not be applicable to the persons appointed to M.P. Judicial Service but, if any matter is not covered by the special provisions relating to them, these Rules shall apply to the persons to the members of Madhya Pradesh Judicial Service as well. The applicability of 1961 Rules has come up for consideration before Division Bench this Court in a judgment reported as 1979 M.P.L.J. 498 (Ramanand Ramnarayan Raidas Vs. State of M.P. and others). The Court upheld the applicability of the 1961 Rules in respect of any matter not covered by the special provisions relating to their service or their post. The relevant extract read as under:-
"16. The contention of the learned counsel for the petitioner has to be repelled for the reasons to follow. The Service Rules cannot be pressed into service for the decision of the point at hand. Rule 3 (C) read with proviso of the Service Rules clearly provides that the Service Rules do not apply to persons appointed to the Madhya Pradesh Judicial Service except in respect of any matter not covered by the special provisions relating to them, their services or their posts. It may be mentioned that this Court has in Jayant Kumar v. Public Service Commission, M.P. (1978 MPLJ 784), reiterating the view of this Court in an earlier decision in Anant Kumar v. State of M.P., (1975 MPLJ 624) held that State
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Government in exercise of its executive powers issue executive instructions relating to the matters of appointment and services of persons to the Madhya Pradesh Judicial Service. The validity of the terms and conditions contained in Annexure 'C' has rightly not been disputed before us. In this view of the matter there being a specific provision in Annexure C, regarding probation and confirmation, resort cannot be made to rule 8 (2) of the service rules."
10. That apart, it is not the argument of learned counsel for the petitioner that Rules are comprehensive to include all situations which a member of the Judicial Service would face as member of the cadre. The proviso to Rule 3 of 1961 Rules, contemplates that if there is any special provision made in respect of judicial service in the Rules, then that provision will prevail otherwise the 1961 Rules would be applicable. The High Court clearly mentioned in the advertisement that the candidate has to satisfy the eligibility criteria as per the Rules as well as 1961 Rules. Therefore, the High Court has not objected to the applicability of the 1961 Rules to the members of Judicial Service. Therefore, the independence of judiciary is not impinged when the High Court itself makes the 1961 Rules as applicable to a candidate seeking appointment to the cadre posts of Higher Judicial Service.
11. The judgment in Bal Mukund Sah's case (supra) arises out of a situation where Bihar Reservation of Vacancy in Posts and Services (for Scheduled Castes/Scheduled Tribes and other Backward Classes) Act, 1991 provided reservation for direct recruitment to the posts in Judiciary of the State without any consultation with the High Court. The Division Bench of the High Court struck down the reservation in the cadre of the District Judges to be filled by the direct recruitment provided without consultation and in the face of
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objection by the High Court. Therefore, that was a case where the State Government and the High Court were at variance on the question of reservation in the Judicial Services. Therefore, the judgment in Bal Mukund Sah's case (supra) has to be read in view of the facts of the said case. The Court has held as under :-
"29. xxxxxxx. So far as direct recruitment to the posts of District Judges is concerned, Article 233 sub-article (2) leaves no room for doubt that unless the candidate is recommended by the High Court, the Governor cannot appoint him as a District Judge. Thus Articles 233 and 234, amongst them, represent a well-knit and complete scheme regulating the appointments at the apex level of District Judiciary, namely, District Judges on the one hand and Subordinate Judges at the grass-root level of Judiciary subordinate to the district court. Thus Subordinate Judiciary represents a pyramidical structure. At base level i.e. grass- root level are the Munsiffs and Magistrates whose recruitment is governed by Article 234. That is the first level of the Judiciary. The second level represents already recruited judicial officers at grass-root level, whose working is controlled by the High Court under Article 235 first part. At the top of this pyramid are the posts of District Judges. Their recruitment to these posts is governed by Article 233. It is the third and the apex level of Subordinate Judiciary.
30. It has also to be kept in view that neither Article 233 nor Article 234 contains any provision of being subject to any enactment by appropriate Legislature as we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter Articles contain provisions regarding the rule making power of the concerned authorities subject to the provisions of the law made by the Parliament or Legislature. Such a provision is conspicuously absent in Articles 233 and 234 of the Constitution of India. Therefore, it is not possible to agree with the contention of learned counsel for the appellant-State that these Articles only deal with the rule making power of the Governor, but do not touch the legislative power of the competent Legislature. It has to be kept in view that once the Constitution provides a complete Code for
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regulating recruitment and appointment to District Judiciary and to Subordinate Judiciary, it gets insulated from the interference of any other outside agency. We have to keep in view the scheme of the Constitution and its basic framework that the Executive has to be separated from the Judiciary. Hence, the general sweep of Article 309 has to be read subject to this complete Code regarding appointment of District Judges and Judges in the Subordinate Judiciary.
35. In order to fructify this Constitutional intention of preserving the independence of Judiciary and for fructifying this basic requirement, the process of recruitment and appointment to the District Judiciary with which we are concerned in the present case, is insulated from outside legislative interference by the Constitutional makers by enacting a complete Code for that purpose, as laid down by Articles 233 and 234. Consultation with the High Court is, therefore, an inevitable essential feature of the exercise contemplated under these two Articles. If any outside independent interference was envisaged by them, nothing prevented the founding fathers from making Articles 233 and 234 subject to the law enacted by the Legislature of States or Parliament as was done in the case of other Articles, as seen earlier. .......
36. It becomes, therefore, obvious that no recruitment to the post of a District Judge can be made by the Governor without recommendation from the High Court. Similarly, appointments to Subordinate Judiciary at grass-root level also cannot be made by the Governor save and except according to the rules framed by him in consultation with the High Court and the Public Service Commission. Any statutory provision bypassing consultation with the High Court and laying down a statutory fiat as is tried to be done by enactment of Section 4 by the Bihar Legislature has got to be held to be in direct conflict with the complete Code regarding recruitment and appointment to the posts of District Judiciary and Subordinate Judiciary as permitted and envisaged by Articles 233 and 234 of the Constitution. The impugned Section 4, therefore, cannot operate in the clearly earmarked and forbidden field for the State Legislature so far as the topic of recruitment to District
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Judiciary and the Subordinate Judiciary is concerned. That field is carved out and taken out from the operation of the general sweep of Article 309."
12. The aforesaid extract from the judgment would show that no recruitment on the post of District Judge can be made by the Governor without recommendation from the High Court. Any statutory provision bypassing consultation with the High Court and providing reservation by the enactment in question is in direct conflict with the constitutional scheme regarding recruitment and appointment to the posts of the District Judiciary and the Subordinate Judiciary as permitted and envisaged by Articles 233 and 234 of the Constitution of India.
13. Coming to the facts of the present case, it is not even remotely suggested by the petitioner that appointment and recruitment to the post of District Judiciary is being made without consultation of the High Court. In fact, the advertisement for recruitment was published by the High Court stipulating disqualification if the candidate is not qualified under the 1994 Rules and 1961 Rules. Therefore, the High Court has considered it appropriate to apply 1961 Rules for the purpose of conditions of eligibility to the post of District Judge (Entry Level). By such process, the constitutional mandate as interpreted by the Supreme Court in Bal Mukund Sah's case (supra) is not infringed in any manner.
14. The recruitment and promotion conditions are peculiar to the Higher Judicial Service and the Rules govern such aspects. However, general procedural conditions such as the period of probation or the conditions for confirmation are dealt with by the 1961 Rules. The applicability of 1961 Rules
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to the members of the Higher Judicial Service does not relate to core of judicial service but relates to procedural aspect which does not cast any shadow on the independence of judiciary.
15. Still further, in Manoj Kumar's case, (supra) the Court has set aside the order of termination for the reason that information in respect of children was not sought from the candidates at the time of filing of application form. In the said case, an argument was raised that 1961 Rules cannot be made applicable to the members of Judicial Service. It was held that the advertisement itself has a stipulation that the candidature of the candidate may be liable for cancellation if he or she does not fulfill the provisions of 1961 Rules. Therefore, the argument that in the absence of statutory Rules framed by the Governor in consultation with the High Court, the 1961 Rules cannot be extended for the purposes of Judicial services was not accepted. The Court held as under :-
"14. The argument of the learned counsel for the petitioners relying upon Bal Mukund Sah's case (supra) is not tenable. Bal Mukund Sah (supra) was a judgment in which the State and the High Court were at variance with respect of applicability of the Rules of reservation for appointment to the members of Judicial service. However, in the present case, the High Court in the advertisement itself made a stipulation for the candidates that the candidate may be liable for cancellation of candidature if he or she does not fulfill the provisions of 1961 Rules. In the teeth of such categorical condition in the advertisement, we do not find any merit in the argument that in the absence of statutory Rules framed by the Governor in consultation with the High Court, the 1961 Rules cannot be extended for the purposes of Judicial services.
15. The argument that where a power is given to do certain thing in a certain way, things must be done in that way or not at all, is again not applicable to the facts of the present case as it was
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always open to the High Court to adopt the statutory Rules framed by the State Government for the purposes of recruitment to the Judicial services. By adoption of such Rules, the High Court is not acting contrary to the Constitutional scheme to ensure independence of the Judiciary. Such clause of disqualification for having more than two living children has a larger public purpose with the aim to control population in the country, therefore, such clause cannot be deemed to be illegal violating any of the provisions of the Constitution or the judgments referred to by the petitioners. Therefore, neither the judgment in Bal Mukund Sah (supra) nor Nazir Ahmad's case (supra) nor the other judgments that things must be done in a certain way prescribed or not at all, are applicable to the facts of the present case.
16. It is contended that the advertisement issued is not clear and categorical in respect of eligibility of candidates, who have more than two living children as on 26th January, 2001. There was no clause in the application form seeking information about the number of children, therefore, disqualification in terms of Clause 3(a) is inferential disqualification and such clause, which is not clear and categorical, cannot be extended to the petitioners. The condition of the advertisement is that the candidate needs to satisfy the condition of eligibility as contemplated in the Rules. The 1961 Rules are not applicable to M.P. Judicial Services. M.P. Judicial Services are not defined under the aforesaid Rules, therefore, Clause (c) of Rule 3 of the 1961 Rules would include the Higher Judicial Services as well as Lower Judicial Services but the proviso contemplates that if any matter is not covered by any special provision relating to Judicial Services, these Rules shall apply.
17. It is not the case of any of the parties that the Rules have any condition similar to disqualification for having more than two living children, therefore, in terms of proviso, the condition of having more than two living children as contained in Rule 6(6) of the 1961 Rules would be applicable to the candidates for the purposes of determining the eligibility of the candidates. Though, the language of the advertisement is not clear but keeping in view the rule of interpretation that various clauses in the advertisement have to be read together, once the advertisement specifies that disqualification as contemplated in the 1961 Rules would be
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applicable, it necessarily implies that the conditions of eligibility as contained in 1961 Rules are also applicable for the purposes of recruitment to the post of District Judge (Entry Level)."
16. In view of the above, we find that the issue in respect of applicability of 1961 Rules has been dealt with in Manoj Kumar's case (supra). This Court interfered with the order of termination on the ground that the application form had no column to seek information about the children. The order of termination was set aside only for the reason that disqualification cannot be based upon inferential condition of qualification. But in the present case, the petitioner has submitted the details of her children in the application form for appearing in the main examination and also before appearing in the interview. The advertisement itself contemplates that 1961 Rules would be applicable. Therefore, the condition of disqualification was quite clear and categorical.
17. The argument that the petitioner was called to appear for the written examination and also for the interview, therefore, the respondents cannot raise a plea that the petitioner is disqualified, is again does not merit consideration. The advertisement was clear and categorical that the disqualification shall be as per the 1994 Rules and 1961 Rules. Mere participation in the written examination and the interview will not make a candidate eligible if in terms of the advertisement itself the candidate was not eligible for appointment. No right accrues in favour of the petitioner prior to appointment, when the candidature was cancelled on the ground of disqualification under the 1961 Rules. In the present case, the candidature of the petitioner has been cancelled before the stage of appointment in terms of the
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condition of the advertisement itself. Therefore, the petitioner cannot raise a plea of estoppel against the respondents.
18. Consequently, we do not find any merit in the present petition. The same is, accordingly, dismissed.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
Anchal
Digitally signed by
ANCHAL KHARE
Date: 2018.04.10
17:00:36 +05'30'