RAVINDRA v. GHUGE & Y. G. KHOBRAGADE, JJ. DATE
Legal Reasoning
*1* 40wp6892o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD40 WRIT PETITION NO. 6892 OF 2024ASHWINI VASANT NIKAM AND ANOTHERVERSUSTHE STATE OF MAHARASHTRA THROUGH SECRETARYAND OTHERS...Shri Reddy Avinash M., Advocate for the Petitioners.Shri S.K. Tambe, AGP for Respondent No.1/State.Shri Mukul Kulkarni, Advocate for Respondent Nos.2 and 3.Shri A.B. Kadethankar, Advocate for Respondent No.4.... CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE :- 08th July, 2024Per Court :-1.Both the Petitioners were permitted to appear for thecompetitive preliminary examination, 2022, for the post of CivilJudge Junior Division and Judicial Magistrate First Class, by theinterim orders of this Court.2.However, the Government Resolution dated03.03.2023 and the corrigendum dated 10.03.2023, wereinterpreted by this Court vide the judgment dated 25.09.2023 inWrit Petition No.11841/2023. It was concluded that similarly *2* 40wp6892o24situated Petitioners were not entitled for any age relaxation sincethey had already availed of the benefit of the first age relaxationpost Covid.3.On similar facts, this Court has delivered an orderon 19.03.2024 in Writ Petition No.6143/2023 (Gopal MotilalSharma vs. The State of Maharashtra and others). For clarity,paragraph Nos.3 to 11 read as under:-“03.We have considered the strenuous submissions ofthe learned Advocates for the respective sides and have gonethrough the Petition paper book with their assistance.04.After the Covid Pandemic, taking into account thatthere was a national lock-down, exams/recruitment processeswere postponed practically in every sector. The Government,therefore, came out with a resolution dated 17.12.2021concluding that those candidates, who become age barred onaccount of the Pandemic and the inability of the AppropriateAuthority in conducting such recruitment exams, would begranted a relaxation in the age limit.05.On an identical footing with relation to the firstexam held for appointment to the Maharashtra Judicial Service,after the Pandemic, candidates who became age barred, reliedupon Government Resolution dated 17.12.2021 and for seekingbenefit of age relaxation, and approached this Court. In the saidWrit Petition No. 356 of 2022 filed by Sagar Satish Patil Vs.State of Maharashtra and Others at the Principal Seat, theDivision Bench of this Court [Coram : A.S. Chandurkar andJitendra Jain, JJ] has delivered a judgment on 19.01.2022.Barring the dates, viz. the issuance of the advertisement, the lastdate for filing of the application forms etc., the facts emerging inthe said proceedings at the Principal Seat, are almost identicalwith the facts before us. The only difference, though that wouldnot advance the case of the Petitioners, is that the examinationbefore us in these Writ Petitions is the second exam held after *3* 40wp6892o24the Pandemic. The first one was pursuant to the AdvertisementNo. 270 of 2021 published on 23.12.2021.06.The analysis and conclusion of the Division Benchin Sagar Satish Patil (Supra) is from paragraph Nos.9 to 16. Wedeem it appropriate to refer to the said paragraphs, hereunder :-“9. Analysis and conclusion :-The Petitioner's primary case appears to be based onGovernment Resolution 17th December 2021 issued byRespondent No.1 to pray for age relaxation to appear forJMFC exam. In our view, the said Circular is made applicableonly to recruitment under Maharashtra Civil Service Ruleswhich contains an enabling provision for age relaxation.Insofar as the recruitment of judicial officers is concerned, thesame is governed by the Maharashtra Judicial Service Rules,2008 which does not have any enabling provision to relax theage. It is settled position that insofar as the judicialrecruitment is concerned, the Rules applicable for otherGovernment employees are not applicable, but they aregoverned only by the Maharashtra Judicial Service Rules,2008. Therefore, in our view, the reliance placed by thePetitioner on the said Government Resolution to plead agerelaxation while seeking recruitment in judicial service isconcerned is to be rejected.10.Article 234 of the Constitution of India provides thatpersons other than District Judges shall be appointed by theGovernor of the State in accordance with Rules made in thatbehalf after consultation with the State Public ServiceCommission and with the High Court exercising jurisdictionin relation to such State. Article 309 of the Constitution ofIndia provides that subject to the provision of theConstitution, Acts of the appropriate Legislature may regulatethe recruitment and conditions of service of personsappointed to public services and post in connection with theaffairs of the Union or of any State. In our view, the Petitioneris not justified in placing reliance on Article 309 to contendthat Government Resolution dated 17th December 2021ought to be made applicable to judicial services. Article 309of the Constitution of India expressly provides that same issubject to the provisions of the Constitution. Therefore, it isArticle 234 which governs the appointments of persons otherthan District Judges and same would be in accordance withthe Rules framed after consultation with the State PublicService Commission and the High Court exercisingjurisdiction in relation to such State. Pursuant to Article 234of the Constitution of India, the Maharashtra Judicial ServiceRules, 2008 has been framed. As per Rule 3(A)(c) age on thedate of publication of advertisement in the case of advocates *4* 40wp6892o24with 3 years practice should not be more than 35 years.Proviso to said Rule, relaxes age limit in respect of candidatesbelonging to the communities recognized as backward by theGovernment for the purpose of recruitment. The said provisois not applicable to the Petitioner's case since the Petitionerdoes not belong to the communities recognized as backwardby the Government for the purpose of recruitment. ThePetitioner has applied under the open category. In theMaharashtra Judicial Service Rules, 2008 there is noprovision or Rule to relax the age for recruitment. Therefore,the Petitioner is not justified in seeking age relaxation sincesame would be contrary to the Judicial Service Rules. We nowpropose to deal with the precedents cited before us by theparties.11.In the case of State of Bihar & Anr. Vs. Bal MukundSah (supra), the issue before the Supreme Court was whetherprovision of Bihar Reservation of Vacancies in Post andServices Act, 1991 would be applicable to the subordinatejudiciary and whether Section 4 of the said Act in itsapplication to the subordinate judiciary would be ultra viresArticles 233 and 234 of the Constitution of India. TheSupreme Court answered the said question in paragraphNos.28 and 29 and observed that Article 309 is of a generalnature dealing with regulation of recruitment and conditionof service of persons serving in the Union or a State and thesaid Article is expressly made subject to other provisions ofthe Constitution. The Supreme Court further observed thatrecruitment and appointment to the post of Presiding Officersof the Courts subordinates to the High Courts would begoverned only by Articles 233 and 234 of the Constitution ofIndia. The Rules framed under Article 234 is afterconsultation with the High Court and Article 233 lays thruston the High Court exercising control over the candidates whoultimately get selected as Judges of the lower judiciary. TheSupreme Court observed that consultation of the Governmentwith the High Court under Article 234 of the Constitution ofIndia is entirely of a different type as compared to hisconsultation with the Public Service Commission aboutprocedural aspect of the selection. The Supreme Courtobserved that Articles 233 and 234 of the Constitution ofIndia represent a well knit and complete scheme regulatingthe appointments at the apex level of the District Judiciary.The Supreme Court thereafter held that section 4 of the BiharAct as unconstitutional. In our view, the said decisionsquarely applies to the Petitioner's case insofar as thecontention of the Petitioner to seek benefit of the Circularand Article 309 is concerned. Applying the ratio of the saiddecision, the Petitioner is not justified in seeking agerelaxation by relying on Article 309 of the Constitution ofIndia. In paragraph No.45 of the said decision, the Supreme *5* 40wp6892o24Court after analyzing Article 309, 235, 233 and 234 observedthat there is a clear intention of the Constitution makers thatso far as question of recruitment and appointment tovacancies in the cadre of District Judges and subordinatejudiciary is concerned neither legislature nor the Governordehors any consultation with the High Court can have anyindependent say. It is further held that Article 234 ousts thelegislative power for making suitable enactment on the topiccovered by it. At the end it concluded that Articles 233 and234 have their full-sway not being inhabited by any outsideindependent interference to be made by the Governor underproviso to Article 309 or by the State legislature in the thatconnection. In our view, ratio of this decision squarely appliesto negate the contention of the Petitioner to make the GRapplicable to his case.12. The decision of the Bombay High Court in the case ofKrantikumar Kishanrao Kaulwar and Anr. vs. MaharashtraPublic Service Commissioner and Anr. also goes against thePetitioner inasmuch as this Court observed that benefit of agerelaxation to economically backward class for open categorycannot be given for recruitment for post of Civil Judge, JuniorDivision and Judicial Magistrate, First Class in the absence ofany decision by High Court Administration to amend theRules pursuant to provision of the Constitution. What issought to be canvassed by the Petitioner is also squarelycovered against the Petitioner by the said decision.13. The decision of the Supreme Court relied upon by thePetitioner in the case of High Court of Delhi Vs. DevinaSharma is also not applicable to the facts of the presentPetitioner since in the case before the Supreme Court, noexamination was conducted during pandemic, whereas in theState of Maharashtra, recruitment process for judicial officerswas held in 2019, 2020 and 2021. Furthermore on acomplete reading of the decision of the Supreme Court in thecase of (2020) 2 Mah LJ 543 Devina Sharma(supra) it is clearthat same was based on a concession made by the counselappearing for the Petitioner and therefore the said decisiondoes not have any precedent value.14. The Supreme Court in the case of Hirandra Kumar(supra) is also relevant. The issue before the Supreme Courtwas that as a result of Rules 8 and 12 of the Uttar PradeshHigher Judicial Service Rules, 1975, a candidate who hascrossed the age limit prescribed between the date of lastrecruitment and the present recruitment was debarred fromappearing in the competitive exam. The High Court permittedthe candidate to appear in the preliminary exam, but theresult was directed to be kept in sealed envelope. Inparagraph No.11.5, the Supreme Court clarified that thedirections in Malik Mazhar Sultan & Anr. (supra) are only *6* 40wp6892o24general directions issued to all High Courts to holdrecruitment every year subject to the Rules of each HighCourt. The Supreme Court further observed that this generaldirections do not vest any enforceable right in a candidate.Therefore the reliance placed by the Petitioner in the case ofMalik Mazhar Sultan & Anr. (supra) to seek age relaxation onthe ground that if the time-schedule given by Malik MazharSultan & Anr. (supra) decision would have been adhered toby the Respondents then he would not be age barred is alsoto be rejected. The Supreme Court further observed thatvalidity of the Rule cannot be made to depend on the basis ofindividual hardships which inevitably arise in applying aprinciple of general application a Court in exercise of thepower of judicial review does not take over that function foritself. In our view, the ratio of this decision squarely applies toreject the contention of the Petitioner insofar as the agerelaxation is sought based on the decision in the case of MalikMazhar Sultan & Anr. (supra) is concerned.15.In High Court of Kerala vs. Reshma A. and Anr., theabove clarification made by the Supreme Court in the case ofHirandra Kumar(supra) was further reiterated in paragraphno.41 and argument that the direction in Malik MazharSultan & Anr. (supra) will prevail over the provisionscontained in the Rule was rejected. The Supreme Court inparagraph no.76 expressly rejected the contention of thePetitioner that on account of pandemic the recruitmentprocess was delayed and the Petitioner should be givenbenefit of covid pandemic. Rejecting the said contention, theSupreme Court observed that a candidate has no vested rightto appointment nor in equity they are entitled to only on theground that the selection is delayed because of covid and therecruitment has to be in accordance with the Rules. In ourview, the submission of the Petitioner to make GovernmentResolution dated 17th December 2021 applicable on accountof pandemic is squarely answered by the Supreme Courtagainst the Petitioner.16.To conclude, the Petitioner is not entitled for agerelaxation by relying upon Government Resolution dated 17thDecember, 2021. The Writ Petition is dismissed with no orderas to costs.”07.In Malik Mazhar Sultan (3) And Another Vs. UttarPradesh Public Service Commissioner And Others, (2008) 17SCC 703, the Hon’ble Supreme Court has ordered in paragraphNos.9 and 10, as under :-“9.We request the Chief Justice of each High Court toconstitute a committee of two or three Judges to monitor andoversee that timely selection and appointment of judicial *7* 40wp6892o24officers is made. The Chief Justice is further requested toconstitute a special cell in the name of “Selection andAppointment” in the High Court or under such other name asthe learned Chief Justice may consider proper with an officerof the rank of Registrar for assisting the Committee and theChief Justice for complying with the aforesaid time schedule.10.The Registrar of the aforesaid Selection andAppointment Committee shall send to the Registrar Generalof this Court by 31st January every year report as regards thefilling up of vacancies with copies to Minister for Law andJustice in the Central Government and the Law Minister ofthe State concerned. The Registrar would also bring it to thenotice of the Committee and the Chief Justice, any deviationfrom the time schedule.”08.In Sagar Satish Patil (Supra), it was canvassed bythe learned Amicus Curiae that the decision in Hirandra KumarVs.High Court of Judicature at Allahabad & Anr., (2020) 17 SCC401 and in High Court of Kerala Vs. Reshma A. and Anr.,(2021) 3 SCC 755, were considered by the Hon’ble SupremeCourt and it was held that the directions issued in Malik MazharSultan (Supra), are only recommendatory. This Court finallyconcluded in Sagar Satish Patil (Supra) that considering therules applicable to the recruitment of the District Judiciary andtaking into account the verdict of this Court in KrantikumarKishanrao Kaulwar Vs. Maharashtra Public Service Commission,2020 (2) Mh.L.J.543, the relaxation in the age in the light ofGovernment Resolution dated 17.12.2021, would not beavailable to these Petitioners and no relief could be granted inview of Reshma (Supra) and Hirandra Kumar (Supra).09.We also find from Malik Mazhar Sultan (Supra),that the Hon’ble Supreme Court has been monitoring theschedule for the recruitment to the posts by direct recruitmentand promotion, in subordinate Courts in all States, except theState of Sikkim, where the cadre of judicial service is very small.Monitoring committees have been constituted in every HighCourt to ensure that appointments are made timely. Even timelimits are fixed for issuance of appointment letters to the directrecruits.10.An argument has been canvassed before us thatthere could be a case of a candidate who did not make anattempt pursuant to the advertisement No.270 of 2021, since hebecame an LL.B. graduate thereafter, and before the present *8* 40wp6892o24advertisement could be issued, he has became age barred. Insuch cases wherein the candidate has passed the LL.B. courseafter the first exam post Covid, and became age barredimmediately thereafter, we do not find that the GovernmentResolution dated 17.12.2021 could be of any assistance in suchcases.11.Insofar as the reliance on the GovernmentResolution dated 03.03.2023 and the corrigendum dated10.03.2023 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 andhas concluded as under :-“3.The Government Resolution dated 03.03.2023outlines the object for which the Government Resolution wasintroduced. It is specifically stated as under:-“izLrkouk%&Lokra«;kP;k ve`r egksRloh o”kkZps vkSfpR; lk/kwu jkT;‘kklukus 75 gtkj inHkjrhph izØh;k lq: dj.;kps ?kksf”kr dsysvlwu] ;kdjhrk inHkjrhojhy fucZa/k dkgh dkyko/khdjhrk f’kfFkydj.;kr vkys vkgsr- R;k vuq”kaxkus Hkjrh izØh;k lq: >kyh vkgs-njE;kuP;k dkyko/khr dkgh yksdizfrfu/khadMwu fuosnus izkIr >kyhvkgsr- lnj fuosnuka}kjs v’kh ekx.kh dj.;kr vkyh vkgs dh] fofo/kdkj.kkaeqGs ¼mnk- dksjksuk] lnks”k ekx.khi=s o ekx.khi= u ikBfo.ks b-½iqjs’kk tkfgjkrh izfl/n u >kY;kus] T;k mesnokjkauk ifj{kkauk cl.;kphla/kh izkIr >kyh ukgh vkf.k R;kaph deky o;kse;kZnk laiq”Vkr vkyhvkgs] v’kk mesnokjkauk ifj{kkauk cl.;kph la/kh izkIr Ogkoh] ;kLro‘kklukus deky o;kse;kZnsr loyr ns.;kckcr ldkjkRedfu.kZ; ?;kok- ;k ik’oZHkwehoj mesnokjkauk deky o;kse;kZnsrf’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/ngks.kkÚ;k loZ tkfgjkrhadfjrk vtZ dj.kkÚ;k mesnokjkalkBhlanHkkZ/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 ekxklizoxkZlkBh 43 o”ksZ½ nksu o”ksZ brdh f’kfFkyrk ¼[kqY;kizoxkZlkBh 40 o”ksZ o ekxkl izoxkZlkBh 45 o”ksZ½ ns.;kr ;srvkgs-2½ --------------------------”4.In the above backdrop, a corrigendum was issued on10.03.2023 and the State Government specifically mentionedthose advertisements which would be covered by theGovernment Resolution dated 03.03.2023. Theadvertisement No.047/2023 is excluded from the ambit ofthe said Government Resolution.xxxxxx
Decision
*9* 40wp6892o247.This Petition need not be entertained for a secondreason that the Government Resolution dated 03.03.2023pertains to those posts for which a recruitment process wasnot conducted for several years as is set out in thereproduced portion. Several candidates became age barred.To give them one opportunity for appearing in therecruitment exam, the Government Resolution wasintroduced and by the corrigendum, the ten specificadvertisements covered by the Government Resolution, werealso specified.””4.In view of the above, no interference is called for.This Writ Petition is dismissed. kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)