Allahabad High Court

Manoj Kumar Singh vs Honble High Court Of Judicature At ... on 11 January, 2023

Bench: Ramesh Sinha, Subhash Vidyarthi




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 1
 
Case :- WRIT - A No. - 220 of 2023
 

 
Petitioner :- Manoj Kumar Singh
 
Respondent :- Honble High Court Of Judicature At Allahabadthru. The Registrar General And Others

Counsel for Petitioner :- Pravin Kumar Singh,Divyarth Singh Chauhan,Prashant Kumar Singh

Counsel for Respondent :- Gaurav Mehrotra,C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)

Hon'ble Ramesh Sinha J.

Hon'ble Subhash Vidyarthi J.

1. Heard Shri Pravin Kumar Singh Advocate, the learned counsel for the petitioner, Shri Vijay Dixit Advocate, the learned counsel for the respondent no. 1 - High Court of Judicature at Allahabad, Shri Indrajeet Shukla, the learned Addl. Chief Standing Counsel for the respondent no. 2 - State and Shri R.K. Upadhyaya, the learned counsel for the respondent no. 3 - U.P. Public Service Commission.

2. By means of the instant petition the petitioner has sought a declaration that the words "next following the year" mentioned in Rule 10 of the Uttar Pradesh Judicial Service Rules, 2001 (which will hereinafter be referred to as ''the 2001 Rules') as ultra vires to Article 14 of the Constitution of India as well as to Rule 6 of the Uttar Pradesh Recruitment of Service (Age limit) Rules, 1972 (which will hereinafter be referred to as ''the 1972 Rules') and to quash the same. A further prayer made by the petitioner is to consider his candidature for recruitment in Uttar Pradesh Judicial Service Civil Judge (Junior Division) Examination 2022.

3. Briefly stated, the petitioner's case is that on 10.12.2022 the Uttar Pradesh Public Service Commission (which will hereinafter be referred to as ''the Commission') issued an advertisement for conducting the Uttar Pradesh Judicial Service Civil Judge (Junior Division) Examination 2022 and the last date of submission of applications was 10.01.2023. The previous advertisement for conducting such an examination had been issued on 11.09.2018.

4. The provision contained in Rule 10 of the 2001 Rules provides that a candidate must have attained the age of more than 35 years on the first day of July, next following the year in which the notification for holding the examination by the Commission is published and where a candidate was eligible in age to appear at the examination in any year of recruitment in which no such examination was held, he shall be deemed to be eligible in age to appear in the next following examination and the maximum number of chances a candidate is permitted to take will be four.

5. As no examination was held in the years 2019, 2020 and 2021, the petitioner's eligibility has to be judged with reference to the Recruitment Year 2019 as per the provision contained in Rule 10 of the 2001 Rules. However, Rule 6 of 1972 Rules provides that notwithstanding anything to the contrary contained in any Service Rules, a candidate must have attained the minimum age and must not have attained the maximum age, on the first day of July of the calendar year in which the vacancies for direct recruitment are advertised by the Commission or any other recruiting authority.

6. The petitioner's grievance is that Rule 6 of the 1972 Rules provides the date for consideration of age of a candidate as the first of July of the calendar year in which the vacancies for direct recruitment are advertised, whereas Rule 10 of the 2001 Rules provides the relevant date for determination of age-criteria as the first day of July, next following the year in which the notification for holding the examination is published.

7. Rule 4 of the 1972 Rules provides that "notwithstanding anything to the country contained in the relevant Service Rules, these Rules shall have effect in all cases, except in cases where advertisements for recruitment have been issued before February 24, 1983".

8. Rule 6 of the 1972 Rules begins with a non-obstante clause and the learned Counsel for the petitioner has submitted that Rule 6 of the 1972 Rules providing for computation of age will have an overriding effect over Rule 10 of the 2001 Rules and the petitioner's age has to be seen as on the first day of July of the calendar year in which the vacancies have been advertised, i.e., on 1st July 2022, as provided in Rule 6 of the 1972 Rules and not on the 1st day of July, next following the year, i.e., 1st July, 2023, as provided in Rule 10 of the 2001 Rules.

9. Replying to the aforesaid submissions, Sri Vijay Dixit, the learned counsel for the opposite party no. 1, Hon'ble High Court of Judicature at Allahabad, has submitted that the 2001 Rules have been framed in exercise of powers conferred by Article 234 of the Constitution of India, after consultation with the High Court and those Rules will have precedence over the 1972 Rules.

10. Sri. Dixit has placed reliance on the decisions of Hon'ble the Supreme Court in the cases of Malik Mazhar Sultan & anr. v. U.P. Public Service Commission & ors., (2006) 9 SCC 507, and Jamaluddin v. State of J & K & ors., (2011) 14 SCC 425.

11. Refuting the aforesaid submissions, the learned counsel for the petitioner has drawn attention of the court to the following recital made in the advertisement :-

"According to the provisions of the Rule-10 of "The U.P. Judicial Service (Amendment) Rules, 2003 dated 19 March, 2003:- (i) Those candidates who were eligible in age to appear at the examination in the year 2019, 2020 and 2021, shall be deemed to be eligible in age. (ii) The maximum number of chances a candidate is permitted to take will be Four (04).

According to the Provisions of "The U.P. Judicial Service Rules, 2001" and Requisition- the Govt. Employees are eligible to apply but no relaxation is admissible to them.

The Hon'ble Court has not adopted the (U.P. Recruitment to Service (Age Limit) (Xth Amendment) Rules, 2012 issued by Govt. of U.P. with regard to increase in the upper age limit from 35 years to 40 years."

12. The learned Counsel for the petitioner has submitted that as the advertisement itself says that the Hon'ble High Court has not adopted the U.P. Recruitment to Service (age limit) (Xth Amendment) Rules 2012 issued by the Government of U.P. with regard to increase in the upper age limit from 35 to 40 years, it naturally follows that the other provisions of the said Rules have been adopted by the High Court and, therefore, the U.P. Recruitment to Service (Age Limit) Rules would govern the selection in question.

13. We have gone through the record and given a thoughtful consideration to the submissions made by the learned counsel for the parties.

14. The petitioner's date of birth is 04.12.1984 and he attained the age of 35 years on 03.12.2019. In case the age is determined in accordance with the 1972 Rules, age of the petitioner will be seen as on 01.07.2022, on which date he was more than 35 years of age and he would not be eligible as per the 1972 Rules. In case his age is determined in accordance with the 2001 Rules, the relevant date for ascertaining his age will be the first day of July of the year next following the year of recruitment, i.e. 01.07.2023, but as no examination was held in the years 2019, 2020 and 2021, the age will be ascertained with reference to the recruitment year 2019, i.e. on 01.07.2020. However, even on that date, the petitioner was more than 35 years of and the petitioner's application has been rejected for this reason.

15. The 1972 Rules have been framed in exercise of powers conferred by Article 309 occurring in Part XIV of the Constitution of India, which provides as follows: -

"309. Recruitment and conditions of service of persons serving the Union or a State.--Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."

(Emphasis supplied)

16. However, the 2001 Rules have been framed in exercise of powers conferred by Article 234 occurring in Part VI of the Constitution of India, which reads as under: -

"Article 234- Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with 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."

17. It is interesting to note that Article 309 is "subject to the other provisions of the Constitution", which means and includes Article 234 but Article 234 is not subject to any other provision of the Constitution.

18. In State of Bihar Bal Mukund, (2000) 4 SCC 640, a five Judge Bench of the Hon'ble Supreme Court held that: -

"The rules framed by the Governor as per Article 234 after following due procedure and the appointments to be made by him under Article 233 by way of direct recruitment to the District Judiciary solely on the basis of the recommendation of the High Court clearly project a complete and insulated scheme of recruitment to the Subordinate Judiciary. This completely insulated scheme as envisaged by the Founders of the Constitution cannot be tinkered with by any outside agency dehors the permissible exercise envisaged by the twin Articles 233 and 234."

* * *

107. It cannot be disputed that the Judicial Service has been given a special treatment under the Constitution and the appointments to the Judicial Service can be made only in accordance with the rules made by the Governor under Article 234 after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State. It follows, therefore, that the Governor or the Executive have no right, power or authority to make rules with respect to the recruitment of persons other than the District Judges to the Judicial Service of the State under Article 309 of the Constitution. Rules governing the service conditions of such persons in the Judicial Service can be made by the Governor only in the manner as prescribed under Article 234 of the Constitution.

* * *

113. From the scheme of the Constitution with particular reference to Part VI Chapter VI, Part XIV Chapter I, Part XI Chapter I and the Seventh Schedule of the Constitution, what emerges is that:

(i) The Constitution-makers had given a special status and treatment to the Judicial Service.

(ii) That the independence of the Judiciary is ensured which cannot be interfered with either by an executive action or by an act of the Legislature.

(iii) That the conditions of service spelt out in Chapter VI of the Constitution cannot be altered, modified or substituted either by rule-making power or by legislation made in exercise of the powers under Article 309 of the Constitution.

(iv) Rules made under Article 234 have primacy in the matter of appointment/recruitment, discipline and control of the Judicial Service and even such rules cannot take away from persons belonging to the Judicial Service any right of appeal which they may have under the law regulating the conditions of their service or as authorising the High Court to deal with them otherwise than in accordance with the conditions of their service prescribed under such law.

(v) The provisions of Chapter VI of Part VI and the powers conferred upon the appropriate Legislature and the Governor under Article 309 are complementary and supplementary to each other subject to the conditions of ensuring the independence of the Judiciary.

(vi) That in case of conflict between the rules made under Chapter VI and under Article 309, the rules specifically framed under Article 234 of the Constitution would prevail and the rules made under Article 309, to that extent, shall give in their way.

(vii) That Parliament or the State Legislature can legislate upon any matter including the matters relating to the Judicial Service provided the legislation is permitted under Part XI Chapter I read with the Seventh Schedule and is not in conflict with other provisions of the Constitution and rights guaranteed in favour of the Judicial Service by the Constitution itself under Part VI Chapter VI.

(viii) Even if any law made by the appropriate Legislature is held to be made with plenary power of legislation and not in conflict with Part VI Chapter VI, being subject to judicial review, it can be challenged if it violates the Fundamental Rights or any other provision of the Constitution.

(ix) As in the case of rules made under Article 234 of the Constitution, it is expected that if any rules are intended to be made by the Executive under Article 309 with respect to the Judicial Service, the High Court shall be consulted and its views given due weight while making such rules. It is needless to say that in the process of consultation, the High Court concerned shall keep in mind the constitutional obligations of the State under Part III, Part IV or any other provision of the Constitution.

(x) The conclusions enumerated hereinabove are, however, not applicable to the higher judiciary constituted and established under Part V Chapter IV and Part VI Chapter V of the Constitution."

19. Thus it is clear that the Rules governing the service conditions of the Judicial Service can be made by the Governor only in the manner as prescribed under Article 234 of the Constitution. Rules made under Article 234 have primacy in the matter of appointment / recruitment to the Judicial Service. In case of conflict between the rules made under Article 234 and under Article 309, the rules specifically framed under Article 234 of the Constitution would prevail and the rules made under Article 309 shall give way. The conditions of service spelt out in Chapter VI of the Constitution cannot be altered, modified or substituted by rule-making power under Article 309 of the Constitution.

20. Therefore, the selection to the posts of Civil Judges (Junior Division) has to be governed by the 2001 Rules, Rule 10 whereof provides as follows: -

"10. Age. A candidate for direct recruitment to the service must have attained the age of 22 years and must not have attained the age of more than 35 years on the first day of July next following the year in which the notification for holding the examination by the Commission inviting Applications, is published:

Provided that the upper age limit shall be higher by five years in the case of candidates to Scheduled Castes, Scheduled Tribes and such other categories as may be notified by the government from time to time:

Provided further that where a candidate was eligible in age to appear at the examination in any year of recruitment in which no such examination was held, he shall be deemed to be eligible in age to appear in the next following examination:

Provided also that the maximum number of chances a candidate is permitted to take will be four."

21. Keeping in view the aforesaid Rule it has been provided in the advertisement that according to the provisions of Rule-10, the candidates who were eligible in age to appear at the examination in the years 2019, 2020 and 2021, shall be deemed to be eligible in age. However, in view of the proviso appended to Rule 10 of the 2001 Rules, in case the petitioner was eligible to appear in the examination held in the year 2019, he would be eligible to appear in the examination to be held in furtherance of the advertisement issued in the year 2022.

22. The petitioner wants that his age should be ascertained in accordance with the 1972 Rules, i.e. on the first day of July of the year of recruitment, but at the same time, the benefit of the Second Proviso appended to Rule 10 of the 2001 Rules should also be given to him so that his age is ascertained with reference to Recruitment year 2019. In order to achieve the aforesaid objective, the petitioner has assailed Rule 10 of 2001 Rules, in so far as it provides for the relevant date of consideration of age of the candidate as the first day of July "next following the year in which the notification for holding the examination is published" and he has submitted that it is ultra vires to Article 14 of the Constitution of India as well as to Rule 6 of the 1972 Rules, which provides the age to be ascertained on the first day of July of the calendar year in which vacancies of direct recruitment are advertised.

23. Regarding the submission of the learned counsel for the petitioner that Rules of 2001 are ultra vires to the Rules of 1972, suffice it to say that a Rule can be assailed as being ultra vires only if the provisions thereof are in conflict with some superior legislation. Rules of 1972 are not superior to the Rules of 2001 and, therefore, any provision of the Rules of 2001 cannot be said to be ultra vires of the Rules of 1972. Moreover, as has already been discussed in preceding paragraphs of this judgment, the 2001 Rules having been framed in exercise of Article 234 of the Constitution of India, would govern selections to the Judicial Service of the State and the 1972 Rules framed in exercise of 309 of the Constitution of India would be subject to the 2001 Rules.

24. So far as the submission of the learned counsel for the petitioner that the Rules of 2001 are ultra vires to the provisions contained in Article 14 of the Constitution of India is concerned, we are of the view that the Rules have been framed by the Governor in consultation with the Uttar Pradesh Public Service Commission and the High Court of Judicature at Allahabad and although it has been provided in the Rules that the suitability of age of a candidate will be seen as on the first day of July, next following the year in which the notification for holding the examination is published, it is also provided in the Rule that where a candidate was eligible in age to appear in examination in any year of recruitment in which no such examination was held, he would be deemed to be eligible in age to appear in the next following examination.

25. In R. N. Goyal v. Ashwani Kumar Gupta, (2004) 11 SCC 753, the Hon'ble Supreme Court held that where the Rules were framed under Article 309 of the Constitution for general good, merely because it causes hardship to an individual, would not be a ground for striking down the Rules.

26. The aforesaid special provisions made by the Governor in the Rules of 2001 framed in exercise of powers conferred by Article 234 of the Constitution of India regulating the recruitment and appointment to the Uttar Pradesh Judicial Service cannot be termed to be unreasonable on the touchstone of Wednesbury unreasonableness, so as to warrant the same being declared ultravires, merely because the Rule makes the petitioner ineligible in age and causes hardship to him.