Jamaluddin Vs. State
of Jammu & Kashmir and Ors.
J U D G E M E N T
H.L. Gokhale J.
1.
This
appeal seeks to challenge the order passed by a Division Bench of the High
Court of Jammu and Kashmir dated 24.2.2004 in LPA No. 133/2003, confirming the
order dated 8.9.2003 passed by a learned Single Judge dismissing the Writ
Petition No. SWP 994/2002 filed by the appellant. Facts leading to this appeal
are this wise
2.
The
appellant belongs to a Scheduled Tribe. He is born on 31.1.1965. He was appointed
as an adhoc Munsif in the Jammu & Kashmir Judicial Service on 13.8.2001. Subsequently,
he applied for the post of Munsif in the Scheduled Tribe category when a
notification was issued by the Jammu and Kashmir Public Service Commission on 4.12.2001
for the regular appointments. The notification required the person to be of not
more than thirty five years of age as on the 1st January of the year in which
the notification was issued. In view 2thereof, the Commission informed him by
communication dated 21.5.2002 that his application was rejected since he was
overage by eleven months.
3.
Being
aggrieved by that order the appellant filed the above referred Writ Petition. A
Single Judge who heard the matter, noted that as per rule 7 of Jammu and Kashmir
Civil Services (Judicial) Recruitment Rules 1967 (Judicial Services Recruitment
Rules for short), the appellant was in fact overage. This rule reads as
follows:- "7. Age. No person shall be recruited to the service who is
more than 35 years of age on the first day of January preceding the year
examination is conducted by the Commission for Recruitment to the
Service."While dismissing the petition, the Single Judge noted that by the
time that matter was heard, the appellant had crossed the age of 37 years which
he claimed as the permissible age for the Scheduled Tribe candidates. The Division
Bench which heard the Letters Patent Appeal also accepted the view taken by the
learned Single Judge, and therefore dismissed the appeal.
4.
Shri
Ambrish Kumar, learned counsel appeared for the appellant, and Shri Gaurav
Pachnanda, learned Senior Additional Advocate General of Jammu and Kashmir appeared
for the respondents. The State of Jammu and Kashmir, the Public Service
Commission of Jammu and Kashmir and the High Court of Jammu and Kashmir through
its Registrar General are joined as the respondents to this appeal.
5.
It
is pointed out on behalf of the appellant that earlier there was no appropriate
reservation for the Scheduled Castes and Scheduled Tribes in the services of State
of Jammu and Kashmir, and also in the services of the High 3Court. Hence, the
then Minister of Law and Justice, Union of India wrote to the Chief Justice of
the High Court on 15.5.1979 drawing his attention to this position. The Union
Law Minister stated in his letter as follows:- "1.... 2. From the
information received from the Jammu and Kashmir High Court last year, it
transpires that there is no provision for reservation for Schedule Castes and Scheduled
Tribes in direct recruitment to the State Judicial and Higher Judicial
Services. 3. ..... You will appreciate that in their present stage of development,
it would be difficult for the Scheduled Castes and Scheduled Tribes to be represented
adequately in the State Judicial and Higher Judicial Services unless special measures
like reservation are undertaken. Since such reservation exists in other services,
there does not seem to be sufficient reason why it should not be there in the State
Judicial and Higher Judicial Services of the State........"
6.
In
view of this letter from the Union Law Minister, this subject was taken up in
the Full Court Meeting of the High Court held from 23 rd February to 26th
February, 1982, wherein following decision was taken:- PREAMBLE RESOLVED14. Reservation
of Seats for Schedule 14. Considered the report of Registrar castes and Scheduled
Tribes in the and also the relevant record. We are of Judicial Service and
Minister Services. the opinion that the general rules framed by the Government of
J&K in this behalf are also applicable to the Judicial Service as also to
the Ministerial services of the Judicial Department; and such reservation are made
accordingly. The Government be informed accordingly.
7.
Based
on this resolution, it is submitted on behalf of the appellant, that whatever
are the general rules applicable to the Government employees in Jammu and
Kashmir ought to be deemed as applicable to the Judicial Services as 4also the
Ministerial Services of the Judicial Department. The age limit for entering into
Government Service was upto thirty eight years of age for Schedule Castes and
Schedule Tribes, and therefore the appellant ought to have been allowed to give
the examination for recruitment to the post of Munsif since at that time his age
was less than thirty eight years. It was submitted that the Public Service Commission
was therefore in error in rejecting his application, and so also were the
learned Single Judge and the Division Bench of the High Court.
8.
As
far as this submission is concerned, it was pointed out on behalf of the
respondents that firstly at the time when this resolution was passed by the High
Court in February 1982, no age relaxation was provided for entering into the services
of the State of Jammu and Kashmir also, and therefore it cannot be deemed that by
passing of this resolution the High Court also brought in the provision for age
relaxation. At that time, the recruitment to the services under the State
Government was governed under SRO No. 394/1981. It provided only for a quantum
of reservation which was 8% for the Scheduled Castes. On 28.6.1994 the State
Government increased the reservation for Schedule Tribes to 10%, for Schedule
Castes to 8%, and for Other Backward Classes to 25%. The appellant had appeared
for the selection held in the year 2002, and at that time the same percentage with
respect to the quantum of reservation was applied. Under the Judicial Services
Recruitment Rules the age limit for Schedule Castes or Schedule Tribes
candidates was thirty five years, but there was no further age relaxation for them,
and that is how the rejection of the candidature of the appellant was justified
by the Public Service Commission.
9.
The
learned counsel for the appellant pointed out that if we look to the letter of
the Union Law Minister, the intention therein was to request the High Court to
see to it that the rules in the State Judiciary are brought on par with the rules
which exist in rest of India. The resolution passed by the Full Court ought to be
looked at from that perspective. In view of this submission on behalf of the appellant,
the respondent pointed out that the Union Law Minister's letter dated 15.5.1979
led the High Court to move in the matter.
On 24.5.1979, the High
Court directed the Registrar to examine the relevant rules and put up the
proposal. The Registrar reported on 2.6.1979 that according to Rule 13 of the
Jammu and Kashmir Schedule Castes and Backward Classes Reservation Rules 1970,
the seats required to be reserved for Scheduled Castes were to the extent of
8%. There was however, no such provision in the Judicial Services Recruitment Rules.
He therefore suggested that the State Government may be approached to provide
for 8% reservation for the Scheduled Castes by incorporating a specific rule
therein. The High Court in its subsequent meeting held on 16.6.1979 asked the
Registrar to inquire with the State Government as regards the prevailing
position regarding reservation, which he did.
By way of a reply,
the High Court received a copy of the letter dated 18.6.1979 sent by the State
Government to the Secretary Government of India, Law Department, marked for the
Registrar of High Court. In this reply it was pointed out that 8% vacancies
were reserved for the candidates belonging to the Schedule Castes under the Jammu
and Kashmir Schedule Castes and Backward Classes Reservation Rules 1970. It was
however, stated that "these 6Rules are applicable to all the services under
the Government except judicial services as the judiciary has since been
separated from the executive."
10.
Shri
Pachnanda, learned counsel appearing for the respondents pointed out that the
resolution passed by the Full Court in February 1982 will have to be looked at
in this background. When some other Writ Petitions were filed in the High Court
concerning these rules, the Government took a stand that whatever are the rules
applicable for entry into the Government Service will apply for the entry into the
High Court Service. However, the High Court administration did place a conscious
view before the bench that on principle the judicial services under the High Court
were separate from other services under the State Government, and the rules governing
recruitment to the Government Service cannot be applied for entry into the High
Court Service.
The stand taken by
the High Court administration has been accepted in two Division Bench judgments
of the High Court. First is the judgment in the case of Riyaz Ahmad Gada Versus
State of Jammu & Kashmir, decided on 29.9.2009 and reported in [JKJ (HC) (Suppl.)
2009 600]. The second judgment is in the case of Syed Shamim Rizvi & Ors.
Versus State of Jammu and Kashmir reported in 2010 (1) SLJ 281. In the second
judgment the High Court has relied upon the judgment of this Court in State of
Bihar Vs. Bal Mukund Sah and Ors. reported in [AIR 2000 SC 1296].
In that matter this
Court has held that rules made by the Government cannot be brought into or
forced upon the recruitment of persons in the judicial services. The rules
framed under Article 309 by the State Government should be treated as general
rules, whereas those under Article 233 to 225 should be treated 7as special rules
applicable for the High Court. The learned counsel for the respondents pressed
into service the same submission before us by pointing out that the provision
of section 110 of the Jammu and Kashmir Constitution is similar to Article 234 of
the Indian Constitution concerning the subordinate judicial service.
11.
The
counsel for the appellant pointed out that Jammu and Kashmir Higher Judicial
Service Rules 1983, provided for a relaxation of two years for the candidates belonging
to Scheduled Castes and Scheduled Tribes, and therefore, similar relaxation should
be made available for the entry to the Subordinate Judicial Service. Shri
Pachnanda accepted that there was an anomaly in that since such relaxation of two
years was provided only for the Higher Judicial Service. The age group expected
for the Higher Judicial Service from the general category was 35 to 45 years,
but for the Scheduled Castes and Scheduled Tribes and Other Backward Classes a
relaxation in age of two years was permissible. He submitted that, this was because
the candidates from these categories were not easily available for the Higher
Judicial Services. That difficulty was however, not there at the Munsif level. Therefore,
no such relaxation was provided at the level of entry of Munsifs into the
judicial service.
12.
It
was pointed out on behalf of the appellant that the Jammu and Kashmir Civil
Services (Classification, Control and Appeal) Rules, 1956, specifically provide
in Rule 3 (2) that they apply to all Government employees except to the extent excluded.
On this Shri Pachnanda pointed out that Judicial Services Recruitment Rules came
in force subsequently in 1967, and under Rule 1(3) thereof, all previous rules
stand repealed. Rule 2 thereof, specifically states that these rules will apply
to the selection of Munsifs. They are specific rules, and therefore, Civil
Services (CC & A) Rules of 1956 will not apply to the entry of the Munsifs
in the Judicial Services. Consideration of the rival submissions
13.
We
have noted the submissions of both the counsels. We quite appreciate the
submission made on behalf of the appellant, and we quite see that there is some
kind of anomaly in the sense that there is no age relaxation at the level of Munsifs,
though it is so provided at the level of entry into the Higher Judicial
Service. The respondents have already given their explanation as to why this
distinction is made and according to them the same stands to reason. That apart,
the rules made by the High Court will govern the recruitment at the Munsif level
as well as at the level of the Higher Judicial Service, and they have the force
of law in view of the provision of Article 234 of the Constitution of India as interpreted
by this Court in Bal Mukund Sah (supra) which is comparable to section 110 of
Constitution of Jammu and Kashmir.
14.
Shri
Ambrish Kumar, learned counsel for the appellant had contended that the provision
for age relaxation available for recruitment to the services in the State
Government should be deemed to be included in the Judicial Services Recruitment
Rules. Shri Pachnanda on the other hand submitted that such a course of action
was not permissible. Our attention has been drawn in this behalf, to a judgment
of this Court in Umesh Chandra Shukla Versus Union of 9India & Ors.
reported in [1985 (3) SCC 721]. That matter was concerning the candidates who
did not qualify for the viva-voce test in the selection to the posts of
Subordinate Judges in Delhi Judicial Service, since they fell short in the
written examination by one or two marks only. After the finalisation of the list
of candidates who had qualified for viva-voice test, a moderation of the marks
in the written test was done so that such candidates with less marks become eligible.
This Court held that
no such ideas outside the Rules can be brought in. The Court held that these
rules are to be read strictly. At the end of paragraph 13 the Court held as
follows:- ".........Exercise of such power of moderation is likely to create
a feeling of distrust in the process of selection to public appointments which is
intended to be fair and impartial. It may also result in the violation of the principle
of equality and may lead to arbitrariness. The cases pointed out by the High Court
are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the
circumstances, we lean in favour of a strict construction of the Rules and hold
that the High Court has no such power under the Rules. We are of the opinion that
the list prepared by the High Court after adding the moderation marks is liable
to be struck down......"
15.
In
the present case the advertisement of the Public Service Commission issued in
the year 2002, required the persons concerned to be of less than thirty five
years of age at the relevant time. That age limit applied to all the candidates.
There was no age relaxation in favour of the candidates belonging to the Scheduled
Castes or Scheduled Tribes, though there was a quantum of reservation provided
for them. The earlier resolution of the Full Court of the High Court passed in
February 1982, will therefore, have to be read as providing only 1for the
quantum and not for any age relaxation. If there is no age relaxation in the rules,
the same cannot be brought in by any judicial interpretation. In the circumstances
we do not find any error in the judgment of the Single Judge or that of the
Division Bench.
16.
Although,
we are not inclined to interfere with the order passed by the High Court on the
judicial side, we do feel that the High Court on its administrative side should
examine the issue as to whether age relaxation should be provided to the candidates
belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes
appearing for the Judicial Service Examination at the Munsif level as is provided
to the candidates appearing for the Higher Judicial Service Examination. We
hope that this will be done without much delay.
17.
For
the reasons stated above the appeal stands dismissed, though there will be no
order as to the costs.
.........................................J.
( J.M. Panchal )
.........................................J.
( H.L. Gokhale )
New
Delhi
Dated:
September 29, 2011
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