RAVINDRA v. GHUGE & R.M. JOSHI, JJ. DATED
Legal Reasoning
( 1 ) wp6143.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6143 OF 2023GOPAL MOTILAL SHARMAVERSUSTHE STATE OF MAHARASHTRA THROUGH THE SECRETARY AND OTHERSWRIT PETITION NO. 6212 OF 2023HARIBA RAMRAO SHINDE AND ANR.VERSUSTHE STATE OF MAHARASHTRA THROUGH THE SECRETARY AND OTHERSWRIT PETITION NO. 6220 OF 2023PRADEEP SOPAN JANGALE & ORS.VERSUSTHE STATE OF MAHARASHTRA THROUGH SECRETARY AND OTHERSWRIT PETITION NO. 6224 OF 2023ASHWINI RAJENDRA PATIL AND ANR.VERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERSWRIT PETITION NO. 6130 OF 2023LATA GOPINATH RATHODVERSUSTHE STATE OF MAHARASHTRA THROUGH PRINCIPAL SECRETARY & ORSWRIT PETITION NO. 6131 OF 2023PAIKRAO PRADNYA MADHUKARVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERSWRIT PETITION NO. 11739 OF 2022SATISH ANANDRAO MUNDEVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS GOVT. PLEADER & ORS.
Legal Reasoning
( 2 ) wp6143.23Mr.Shrimant Mundhe, Mr. Shaikh M.A.Jahagirdar, Mr. K.S. Chavan, Mr. A.N.Sabnis, Ms. Priyanka R. Deshpande, Advocates for the Petitioners in therespective Petitions.Mr.S.K. Tambe, AGP for the Respondent/State.Mr.A.B. Kadethankar, Advocate for Respondent/Registrar, High Court, Bombay.Mr.Mukul Kulkarni, Advocate for the Respondent-MPSC.CORAM: RAVINDRA V. GHUGE & R.M. JOSHI, JJ. DATED: 19.03.2024PC :-01.In all these matters, the Petitioners are identically situated. Acommon grievance in all these matters is with regards to relaxation in the agefor recruitment under the Maharashtra Judicial Service Rules, 2008 pertainingto the recruitment process of the year 2022, by the MPSC.02.The advertisement was published on 19.05.2023. The last datefor tendering the application was 16.06.2023. The Petitioners before us claimto have become age barred on account of the delay caused by the MPSC inpublishing the advertisement and conducting the recruitment process.03.We have considered the strenuous submissions of the learnedAdvocates for the respective sides and have gone through the Petition paper ( 3 ) wp6143.23book with their assistance.04.After the Covid Pandemic, taking into account that there was anational lock-down, exams/recruitment processes were postponed practicallyin every sector. The Government, therefore, came out with a resolution dated17.12.2021 concluding that those candidates, who become age barred onaccount of the Pandemic and the inability of the Appropriate Authority inconducting such recruitment exams, would be granted a relaxation in the agelimit.05.On an identical footing with relation to the first exam held forappointment to the Maharashtra Judicial Service, after the Pandemic,candidates who became age barred, relied upon Government Resolution dated17.12.2021 and for seeking benefit of age relaxation, and approached thisCourt. In the said Writ Petition No. 356 of 2022 filed by Sagar Satish Patil Vs.State of Maharashtra and Others at the Principal Seat, the Division Bench ofthis Court [Coram : A.S. Chandurkar and Jitendra Jain, JJ] has delivered ajudgment on 19.01.2022. Barring the dates, viz. the issuance of theadvertisement, the last date for filing of the application forms etc., the facts ( 4 ) wp6143.23emerging in the said proceedings at the Principal Seat, are almost identicalwith the facts before us. The only difference, though that would not advancethe case of the Petitioners, is that the examination before us in these WritPetitions is the second exam held after the Pandemic. The first one waspursuant to the Advertisement No. 270 of 2021 published on 23.12.2021.06.The analysis and conclusion of the Division Bench in Sagar SatishPatil (Supra) is from paragraph Nos.9 to 16. We deem it appropriate to referto the said paragraphs, here under :-“9. Analysis and conclusion :-The Petitioner's primary case appears to be based on GovernmentResolution 17th December 2021 issued by Respondent No.1 to pray for agerelaxation to appear for JMFC exam. In our view, the said Circular is madeapplicable only to recruitment under Maharashtra Civil Service Rules whichcontains an enabling provision for age relaxation. Insofar as the recruitmentof judicial officers is concerned, the same is governed by the MaharashtraJudicial Service Rules, 2008 which does not have any enabling provision torelax the age. It is settled position that insofar as the judicial recruitment isconcerned, the Rules applicable for other Government employees are notapplicable, but they are governed only by the Maharashtra Judicial ServiceRules, 2008. Therefore, in our view, the reliance placed by the Petitioner onthe said Government Resolution to plead age relaxation while seekingrecruitment in judicial service is concerned is to be rejected.10.Article 234 of the Constitution of India provides that persons otherthan District Judges shall be appointed by the Governor of the State inaccordance with Rules made in that behalf after consultation with the StatePublic Service Commission and with the High Court exercising jurisdiction inrelation to such State. Article 309 of the Constitution of India provides thatsubject to the provision of the Constitution, Acts of the appropriateLegislature may regulate the recruitment and conditions of service of personsappointed to public services and post in connection with the affairs of theUnion or of any State. In our view, the Petitioner is not justified in placing ( 5 ) wp6143.23reliance on Article 309 to contend that Government Resolution dated 17thDecember 2021 ought to be made applicable to judicial services. Article 309of the Constitution of India expressly provides that same is subject to theprovisions of the Constitution. Therefore, it is Article 234 which governs theappointments of persons other than District Judges and same would be inaccordance with the Rules framed after consultation with the State PublicService Commission and the High Court exercising jurisdiction in relation tosuch State. Pursuant to Article 234 of the Constitution of India, theMaharashtra Judicial Service Rules, 2008 has been framed. As per Rule 3(A)(c) age on the date of publication of advertisement in the case of advocateswith 3 years practice should not be more than 35 years. Proviso to said Rule,relaxes age limit in respect of candidates belonging to the communitiesrecognized as backward by the Government for the purpose of recruitment.The said proviso is not applicable to the Petitioner's case since the Petitionerdoes not belong to the communities recognized as backward by theGovernment for the purpose of recruitment. The Petitioner has applied underthe open category. In the Maharashtra Judicial Service Rules, 2008 there is noprovision or Rule to relax the age for recruitment. Therefore, the Petitioner isnot justified in seeking age relaxation since same would be contrary to theJudicial Service Rules. We now propose to deal with the precedents citedbefore us by the parties.11.In the case of State of Bihar & Anr. Vs. Bal Mukund Sah (supra), theissue before the Supreme Court was whether provision of Bihar Reservation ofVacancies in Post and Services Act, 1991 would be applicable to thesubordinate judiciary and whether Section 4 of the said Act in its applicationto the subordinate judiciary would be ultra vires Articles 233 and 234 of theConstitution of India. The Supreme Court answered the said question inparagraph Nos.28 and 29 and observed that Article 309 is of a general naturedealing with regulation of recruitment and condition of service of personsserving in the Union or a State and the said Article is expressly made subjectto other provisions of the Constitution. The Supreme Court further observedthat recruitment and appointment to the post of Presiding Officers of theCourts subordinates to the High Courts would be governed only by Articles233 and 234 of the Constitution of India. The Rules framed under Article 234is after consultation with the High Court and Article 233 lays thrust on theHigh Court exercising control over the candidates who ultimately get selectedas Judges of the lower judiciary. The Supreme Court observed thatconsultation of the Government with the High Court under Article 234 of theConstitution of India is entirely of a different type as compared to hisconsultation with the Public Service Commission about procedural aspect ofthe selection. The Supreme Court observed that Articles 233 and 234 of theConstitution of India represent a well knit and complete scheme regulatingthe appointments at the apex level of the District Judiciary. The SupremeCourt thereafter held that section 4 of the Bihar Act as unconstitutional. In ( 6 ) wp6143.23our view, the said decision squarely applies to the Petitioner's case insofar asthe contention of the Petitioner to seek benefit of the Circular and Article 309is concerned. Applying the ratio of the said decision, the Petitioner is notjustified in seeking age relaxation by relying on Article 309 of theConstitution of India. In paragraph No.45 of the said decision, the SupremeCourt after analyzing Article 309, 235, 233 and 234 observed that there is aclear intention of the Constitution makers that so far as question ofrecruitment and appointment to vacancies in the cadre of District Judges andsubordinate judiciary is concerned neither legislature nor the Governordehors any consultation with the High Court can have any independent say. Itis further held that Article 234 ousts the legislative power for making suitableenactment on the topic covered by it. At the end it concluded that Articles233 and 234 have their full-sway not being inhabited by any outsideindependent interference to be made by the Governor under proviso to Article309 or by the State legislature in the that connection. In our view, ratio of thisdecision squarely applies to negate the contention of the Petitioner to makethe GR applicable to his case.12. The decision of the Bombay High Court in the case of KrantikumarKishanrao Kaulwar and Anr. vs. Maharashtra Public Service Commissionerand Anr. also goes against the Petitioner inasmuch as this Court observed thatbenefit of age relaxation to economically backward class for open categorycannot be given for recruitment for post of Civil Judge, Junior Division andJudicial Magistrate, First Class in the absence of any decision by High CourtAdministration to amend the Rules pursuant to provision of the Constitution.What is sought to be canvassed by the Petitioner is also squarely coveredagainst the Petitioner by the said decision.13. The decision of the Supreme Court relied upon by the Petitioner in thecase of High Court of Delhi Vs. Devina Sharma is also not applicable to thefacts of the present Petitioner since in the case before the Supreme Court, noexamination was conducted during pandemic, whereas in the State ofMaharashtra, recruitment process for judicial officers was held in 2019, 2020and 2021. Furthermore on a complete reading of the decision of the SupremeCourt in the case of (2020) 2 Mah LJ 543 Devina Sharma(supra) it is clearthat same was based on a concession made by the counsel appearing for thePetitioner and therefore the said decision does not have any precedent value.14. The Supreme Court in the case of Hirandra Kumar (supra) is alsorelevant. The issue before the Supreme Court was that as a result of Rules 8and 12 of the Uttar Pradesh Higher Judicial Service Rules, 1975, a candidatewho has crossed the age limit prescribed between the date of last recruitmentand the present recruitment was debarred from appearing in the competitiveexam. The High Court permitted the candidate to appear in the preliminaryexam, but the result was directed to be kept in sealed envelope. In paragraphNo.11.5, the Supreme Court clarified that the directions in Malik Mazhar
Decision
( 7 ) wp6143.23Sultan & Anr. (supra) are only general directions issued to all High Courts tohold recruitment every year subject to the Rules of each High Court. TheSupreme Court further observed that this general directions do not vest anyenforceable right in a candidate. Therefore the reliance placed by thePetitioner in the case of Malik Mazhar Sultan & Anr. (supra) to seek agerelaxation on the ground that if the time-schedule given by Malik MazharSultan & Anr. (supra) decision would have been adhered to by theRespondents then he would not be age barred is also to be rejected. TheSupreme Court further observed that validity of the Rule cannot be made todepend on the basis of individual hardships which inevitably arise in applyinga principle of general application a Court in exercise of the power of judicialreview does not take over that function for itself. In our view, the ratio of thisdecision squarely applies to reject the contention of the Petitioner insofar asthe age relaxation is sought based on the decision in the case of Malik MazharSultan & Anr. (supra) is concerned.15.In High Court of Kerala vs. Reshma A. and Anr., the above clarificationmade by the Supreme Court in the case of Hirandra Kumar(supra) wasfurther reiterated in paragraph no.41 and argument that the direction inMalik Mazhar Sultan & Anr. (supra) will prevail over the provisions containedin the Rule was rejected. The Supreme Court in paragraph no.76 expresslyrejected the contention of the Petitioner that on account of pandemic therecruitment process was delayed and the Petitioner should be given benefit ofcovid pandemic. Rejecting the said contention, the Supreme Court observedthat a candidate has no vested right to appointment nor in equity they areentitled to only on the ground that the selection is delayed because of covidand the recruitment has to be in accordance with the Rules. In our view, thesubmission of the Petitioner to make Government Resolution dated 17thDecember 2021 applicable on account of pandemic is squarely answered bythe Supreme Court against the Petitioner.16.To conclude, the Petitioner is not entitled for age relaxation by relyingupon Government Resolution dated 17th December, 2021. The Writ Petition isdismissed with no order as to costs.”07.In Malik Mazhar Sultan (3) And Another Vs. Uttar Pradesh PublicService Commissioner And Others, (2008) 17 SCC 703, the Hon’ble SupremeCourt has ordered in paragraph Nos.9 and 10, as under :-“9.We request the Chief Justice of each High Court to constitute acommittee of two or three Judges to monitor and oversee that timelyselection and appointment of judicial officers is made. The Chief Justice is ( 8 ) wp6143.23further requested to constitute a special cell in the name of “Selection andAppointment” in the High Court or under such other name as the learnedChief Justice may consider proper with an officer of the rank of Registrar forassisting the Committee and the Chief Justice for complying with theaforesaid time schedule.10.The Registrar of the aforesaid Selection and Appointment Committeeshall send to the Registrar General of this Court by 31st January every yearreport as regards the filling up of vacancies with copies to Minister for Lawand Justice in the Central Government and the Law Minister of the Stateconcerned. The Registrar would also bring it to the notice of the Committeeand the Chief Justice, any deviation from the time schedule.”08.In Sagar Satish Patil (Supra), it was canvassed by the learnedAmicus Curiae that the decision in Hirandra Kumar Vs.High Court ofJudicature at Allahabad & Anr., (2020) 17 SCC 401 and in High Court ofKerala Vs. Reshma A. and Anr., (2021) 3 SCC 755, were considered by theHon’ble Supreme Court and it was held that the directions issued in MalikMazhar Sultan (Supra), are only recommendatory. This Court finallyconcluded in Sagar Satish Patil (Supra) that considering the rules applicableto the recruitment of the District Judiciary and taking into account the verdictof this Court in Krantikumar Kishanrao Kaulwar Vs. Maharashtra PublicService Commission, 2020 (2) Mh.L.J.543, the relaxation in the age in thelight of Government Resolution dated 17.12.2021, would not be available tothese Petitioners and no relief could be granted in view of Reshma (Supra)and Hirandra Kumar (Supra). ( 9 ) wp6143.2309.We also find from Malik Mazhar Sultan (Supra), that the Hon’bleSupreme Court has been monitoring the schedule for the recruitment to theposts by direct recruitment and promotion, in subordinate Courts in all States,except the State of Sikkim, where the cadre of judicial service is very small.Monitoring committees have been constituted in every High Court to ensurethat appointments are made timely. Even time limits are fixed for issuance ofappointment letters to the direct recruits.10.An argument has been canvassed before us that there could be acase of a candidate who did not make an attempt pursuant to theadvertisement No.270 of 2021, since he became an LL.B. graduate thereafter,and before the present advertisement could be issued, he has became agebarred. In such cases wherein the candidate has passed the LL.B. course afterthe first exam post Covid, and became age barred immediately thereafter, wedo not find that the Government Resolution dated 17.12.2021 could be of anyassistance in such cases.11.Insofar as the reliance on the Government Resolution dated ( 10 ) wp6143.2303.03.2023 and the corrigendum dated 10.03.2023 in similar circumstances,this Court [Coram : Ravindra V. Ghuge & Y.G. Khobragade, JJ.] has delivered ajudgment on 25.09.2023 in Writ Petition No. 11841 of 2023 and hasconcluded as under :-“3.The Government Resolution dated 03.03.2023 outlines the object forwhich the Government Resolution was introduced. It is specifically stated asunder:-“izLrkouk%&Lokra«;kP;k ve`r egksRloh o”kkZps vkSfpR; lk/kwu jkT; ‘kklukus 75 gtkjinHkjrhph izØh;k lq: dj.;kps ?kksf”kr dsys vlwu] ;kdjhrk inHkjrhojhy fucZa/k dkghdkyko/khdjhrk f’kfFky dj.;kr vkys vkgsr- R;k vuq”kaxkus Hkjrh izØh;k lq: >kyh vkgs-njE;kuP;k dkyko/khr dkgh yksdizfrfu/khadMwu fuosnus izkIr >kyh vkgsr- lnj fuosnuka}kjsv’kh ekx.kh dj.;kr vkyh vkgs dh] fofo/k dkj.kkaeqGs ¼mnk- dksjksuk] lnks”k ekx.khi=s oekx.khi= u ikBfo.ks b-½ iqjs’kk tkfgjkrh izfl/n u >kY;kus] T;k mesnokjkauk ifj{kkaukcl.;kph la/kh izkIr >kyh ukgh vkf.k R;kaph deky o;kse;kZnk laiq”Vkr vkyh vkgs] v’kkmesnokjkauk ifj{kkauk cl.;kph la/kh izkIr Ogkoh] ;kLro ‘kklukus deky o;kse;kZnsrloyr ns.;kckcr ldkjkRed fu.kZ; ?;kok- ;k ik’oZHkwehoj mesnokjkauk dekyo;kse;kZnsr f’kfFkyrk ns.;kph ckc ‘kklukP;k fopkjk/khu gksrh-‘kklu fu.kZ; %&izLrkousr uewn dkj.kkapk lk/kdck/kd fopkj d:u] ;k ‘kklu fu.kZ;k}kjs[kkyhyizek.ks lqpuk ns.;kr ;sr vkgsr-1½;k ‘kklu fu.kZ;kP;k fnukadkiklwu rs fn- 31 fMlsacj] 2023 Ik;Zar ‘kkldh; lsosr ljGlsosus fu;qDrhlanHkkZr izfl/n gks.kkÚ;k loZ tkfgjkrhadfjrkvtZ dj.kkÚ;k mesnokjkalkBh lanHkkZ/khu fn-25-04-2016 P;k ‘kklu fu.kZ;kr fofgrdsysY;k deky o;kse;kZnsr ¼[kqY;k izoxkZlkBh 38 o”ksZ o ekxkl izoxkZlkBh 43 o”ksZ½ nksuo”ksZ brdh f’kfFkyrk ¼[kqY;k izoxkZlkBh 40 o”ksZ o ekxkl izoxkZlkBh 45o”ksZ½ ns.;kr ;sr vkgs-2½ --------------------------”4.In the above backdrop, a corrigendum was issued on 10.03.2023 andthe State Government specifically mentioned those advertisements whichwould be covered by the Government Resolution dated 03.03.2023. Theadvertisement No.047/2023 is excluded from the ambit of the saidGovernment Resolution.xxxxxx7.This Petition need not be entertained for a second reason that theGovernment Resolution dated 03.03.2023 pertains to those posts for which arecruitment process was not conducted for several years as is set out in the ( 11 ) wp6143.23reproduced portion. Several candidates became age barred. To give them oneopportunity for appearing in the recruitment exam, the GovernmentResolution was introduced and by the corrigendum, the ten specificadvertisements covered by the Government Resolution, were also specified.”12.The learned Advocate appearing on behalf of the MPSC hastendered the results to this Court in deference to the earlier order. As such,the order is complied with.13.In view of the law laid down by the Hon’ble Supreme Court andthe judgment of this Court in Sagar Satish Patil (Supra), these Writ Petitionsare disposed off.[R.M. JOSHI,J.][RAVINDRA V. GHUGE,J.]snk/2024/MAR24/wp6143.23