Bombay High Court
Sagar Satish Patil vs The State Of Maharashtra And Anr on 19 January, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:3990-DB
Sayyed 908-WP-356-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.356 OF 2022
Sagar Satish Patil
Age: 35, Occu: Advocate,
R/o. Patil Building, Mill Road,
Kala Mandir, Nanded. ..Petitioner
Versus
1. The State of Maharashtra
Through Secretary,
Law and Judiciary Department,
Mantralaya, Mumbai - 400 032.
2. Maharashtra Public Service Commission
Through the Secretary
5th, 7th and 8th Floor, MTNL Bldg., Near
Cooperage Ground, Cooperage
Mumbai - 400 001.
3. The Registrar (General)
High Court of Bombay
Fort, Mumbai. ..Respondents
__________
Mr. Sandeep Dere for the Petitioner.
Dr. Milind Sathe, Senior Advocate appointed as Amicus
Mr. N. C. Walimbe, Addl. G. P. a/w Mr. A. R. Metkari, AGP for
Respondent No.1 (State).
Mr. Shekhar Jagtap a/w Ms. Sairuchita Chowdhary & Mr. Ishan Paradkar
i/by J. Shekhar Associates for Respondent No.2 (MPSC)
Mr. Rahul Nerlekar for Respondent No.3 (High Court)
__________
CORAM : A. S. CHANDURKAR &
JITENDRA JAIN, JJ.
DATE : 19th JANUARY 2024
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JUDGMENT:
(per Jitendra Jain, J.)
1. Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
2. By this Petition under Article 226 of the Constitution of India,
the Petitioner has prayed for following relief :
(a) that this Hon'ble be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ,
order or direction thereby directing the Respondents to relax the
age criteria pursuant to the advertisement no.270 of 2021.
3. Brief facts are as under :-
(i) On 23rd December 2021, Respondent No.2-MPSC issued an
advertisement No.270 of 2021 for the post of Judicial Magistrate
First Class (JMFC). As per the said advertisement, the age limit for
open category was fixed at 35 years as on 23rd December 2021.
(ii) The Petitioner, has completed age of 35 years on 24 th November
2021 and therefore was age barred to apply for the post of JMFC
since he was ineligible candidate for JMFC-2021 examination.
(iii) On 17th December 2021, the Respondent No.1-State issued a
Government Resolution relaxing the age for direct service
recruitment as a one time measure on account of pandemic.
(iv) On 3rd January 2022, the Petitioner made a representation to
Respondent No.3-Registrar General High Court requesting that the
Government Resolution of 17th December 2021 be made applicable
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to him. Similar representation was made by the Petitioner to
Respondent Nos.1 and 2 seeking age relaxation. However, the same
was not granted and therefore the present petition is filed seeking
age relaxation so that the Petitioner would be eligible to apply for
the said post.
4. Submission of the Petitioner :-
The Petitioner relying on the decision of the Supreme Court in
the case of Malik Mazhar Sultan and Anr. vs. Uttar Pradesh Public
Service Commission and Ors.1 contended that had Respondent No.2
adhered to the time-frame for issuing the advertisement as per the said
decision then he would be eligible for applying to the JMFC post and
since same was not followed by the Respondents, the impugned action is
contrary to the decision of the Supreme Court. The Petitioner further
submitted that on conjoint reading of Articles 234 and 309 of the
Constitution of India, the Government Resolution dated 17 th December
2021 issued by Respondent No.1 is to be made applicable and thereby
benefit of age relaxation should be granted. The Petitioner also relied
upon the Maharashtra Judicial Service Rules, 2008 and more
particularly Rule 4 to contend that since the appointing authority is the
Governor, the Government Resolution issued in the name of Governor
should be made applicable to his case. The Petitioner also relied upon
1 (2008) 17 SCC 703
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Article 16 of the Constitution of India and submitted that since other
citizens are given the benefit of Government Resolution dated 17 th
December 2021, he is seeking equal opportunity as mandated by Article
16 of the Constitution of India and therefore is justified in seeking age
relaxation benefit. The Petitioner, therefore, prayed for seeking age
benefit relaxation to be eligible for applying for the post of JMFC.
5. Submissions of the Amicus-curiae:-
Dr. Sathe, learned senior counsel appointed by the Court to
assist submitted that the Petitioner is already age barred in November
2021 because as on the date of advertisement he had already cross the
age of 35 years. The learned senior counsel also submitted that
Respondent No.2 has conducted JMFC examination in the year 2019,
2020 and 2021 also. The learned senior counsel further relied upon the
decision of the Supreme Court in the case of State of Bihar & Anr. vs. Bal
Mukund Sah and Ors2. and contended that insofar as the judicial service
is concerned it would be governed by the Judicial Service Rules and no
other authority has the power to relax the age. The learned senior
counsel further submitted that Government Resolution dated 17 th
December 2021 does not apply to the post of judicial services and
furthermore even if it is applied then same is not applicable to the
Petitioner since it deals with Government Resolution dated 25 th April
2 (2000) 4 SCC 640
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2016 for not conducting the competitive examination for recruitment in
Government service during the period 1st March 2020 till 17th December
2021. This is so because in the instant case, Respondent No.2 had
conducted the examination for the post of JMFC in the year 2019, 2020
and 2021. The learned senior counsel further submitted that there is no
provision to relax the age bar under the Maharashtra Judicial Service
Rules, 2008 and therefore the prayer sought for cannot be granted. The
learned senior counsel also relied upon the decision in the case of
Hirandra Kumar vs. High Court of Judicature At Allahabad and Anr.3 and
the decision in the case of High Court of Kerala vs. Reshma A. and Anr.4
and submitted that the time schedule laid down by Supreme Court in
Malik Mazhar Sultan (supra) is only re-commendatory but what would
prevail would be Judicial Service Rules.
6. Submission of Respondent No.2 and 3 :-
Respondent No. 2 submitted that they had sought clarification
on this issue from Respondent No.3 and the response was received that
no such relaxation can be given since the Government Resolution dated
17th December 2021 is not applicable for the post of judicial service. The
learned counsel for Respondent No.2 adopted the submission made by
the amicus curiae and sought dismissal of the petition. The learned
3 (2020) 17 SCC 401
4 (2021) 3 SCC 755
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counsel for Respondent No.3 relied upon the Affidavit-in-reply filed to
oppose the petition and also adopted the submission made by the
amicus curiae and Respondent No.2 and prayed for dismissal of the
Petition.
7. Submission in Rejoinder of the Petitioner :-
The Petitioner, in rejoinder distinguished the decision in the
case of Hirandra Kumar (supra) on the ground that what was challenged
before the Supreme Court was Rule 10 of Uttar Pradesh Higher Judicial
Service Rules,1975 and there were no exceptional circumstances like in
the present case on account of pandemic. Therefore the ratio of the
decision in the case of Hirandra Kumar (supra) is not applicable. Insofar
as the decision of the Supreme Court in the case of Reshma A. (supra) is
concerned. It was submitted that even on the date of advertisement, the
candidates were over-age, whereas in the case of the Petitioner if the
advertisement would have been published in accordance with the time-
schedule provided in the case of Malik Mazhar Sultan (supra) then the
Petitioner would have been eligible on the date of advertisement and
therefore even this decision in the case of Reshma A. (supra) is not
applicable to the facts of the Petitioner.
8. We have heard the learned counsel for the Petitioner and the
learned counsel for the Respondents and with their assistance have
perused the documents annexed to the Petition.
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9. Analysis and conclusion :-
The Petitioner's primary case appears to be based on
Government Resolution 17th December 2021 issued by Respondent No.1
to pray for age relaxation to appear for JMFC exam. In our view, the
said Circular is made applicable only to recruitment under Maharashtra
Civil Service Rules which contains an enabling provision for age
relaxation. Insofar as the recruitment of judicial officers is concerned,
the same is governed by the Maharashtra Judicial Service Rules, 2008
which does not have any enabling provision to relax the age. It is settled
position that insofar as the judicial recruitment is concerned, the Rules
applicable for other Government employees are not applicable, but they
are governed only by the Maharashtra Judicial Service Rules, 2008.
Therefore, in our view, the reliance placed by the Petitioner on the said
Government Resolution to plead age relaxation while seeking
recruitment in judicial service is concerned is to be rejected.
10. Article 234 of the Constitution of India provides that persons
other than District Judges shall be appointed by the Governor of the
State in accordance with Rules made in that behalf after consultation
with the State Public Service Commission and with the High Court
exercising jurisdiction in relation to such State. Article 309 of the
Constitution of India provides that subject to the provision of the
Constitution, Acts of the appropriate Legislature may regulate the
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recruitment and conditions of service of persons appointed to public
services and post in connection with the affairs of the Union or of any
State. In our view, the Petitioner is not justified in placing reliance on
Article 309 to contend that Government Resolution dated 17 th December
2021 ought to be made applicable to judicial services. Article 309 of the
Constitution of India expressly provides that same is subject to the
provisions of the Constitution. Therefore, it is Article 234 which governs
the appointments of persons other than District Judges and same would
be in accordance with the Rules framed after consultation with the State
Public Service Commission and the High Court exercising jurisdiction in
relation to such State. Pursuant to Article 234 of the Constitution of
India, the Maharashtra 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 advocates with 3 years practice should not be more than 35
years. Proviso to said Rule, relaxes age limit in respect of candidates
belonging to the communities recognized as backward by the
Government for the purpose of recruitment. The said proviso is not
applicable to the Petitioner's case since the Petitioner does not belong to
the communities recognized as backward by the Government for the
purpose of recruitment. The Petitioner has applied under the open
category. In the Maharashtra Judicial Service Rules, 2008 there is no
provision or Rule to relax the age for recruitment. Therefore, the
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Petitioner is not justified in seeking age relaxation since same would be
contrary to the Judicial Service Rules. We now propose to deal with the
precedents cited before us by the parties.
11. In the case of State of Bihar & Anr. vs. Bal Mukund Sah
(supra), the issue before the Supreme Court was whether provision of
Bihar Reservation of Vacancies in Post and Services Act, 1991 would be
applicable to the subordinate judiciary and whether Section 4 of the said
Act in its application to the subordinate judiciary would be ultra vires
Articles 233 and 234 of the Constitution of India. The Supreme Court
answered the said question in paragraph Nos.28 and 29 and observed
that Article 309 is of a general nature dealing with regulation of
recruitment and condition of service of persons serving in the Union or a
State and the said Article is expressly made subject to other provisions of
the Constitution. The Supreme Court further observed that recruitment
and appointment to the post of Presiding Officers of the Courts
subordinates to the High Courts would be governed only by Articles 233
and 234 of the Constitution of India. The Rules framed under Article
234 is after consultation with the High Court and Article 233 lays thrust
on the High Court exercising control over the candidates who ultimately
get selected as Judges of the lower judiciary. The Supreme Court
observed that consultation of the Government with the High Court
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under Article 234 of the Constitution of India is entirely of a different
type as compared to his consultation with the Public Service
Commission about procedural aspect of the selection. The Supreme
Court observed that Articles 233 and 234 of the Constitution of India
represent a well knit and complete scheme regulating the appointments
at the apex level of the District Judiciary. The Supreme Court thereafter
held that section 4 of the Bihar Act as unconstitutional. In our view, the
said decision squarely applies to the Petitioner's case insofar as the
contention of the Petitioner to seek benefit of the Circular and Article
309 is concerned. Applying the ratio of the said decision, the Petitioner
is not justified in seeking age relaxation by relying on Article 309 of the
Constitution of India. In paragraph No.45 of the said decision, the
Supreme Court after analyzing Articles 309, 235, 233 and 234 observed
that there is a clear intention of the Constitution makers that so far as
question of recruitment and appointment to vacancies in the cadre of
District Judges and subordinate judiciary is concerned neither legislature
nor the Governor dehors any consultation with the High Court can have
any independent say. It is further held that Article 234 ousts the
legislative power for making suitable enactment on the topic covered by
it. At the end it concluded that Articles 233 and 234 have their full-
sway not being inhabited by any outside independent interference to be
made by the Governor under proviso to Article 309 or by the State
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legislature in the that connection. In our view, ratio of this decision
squarely applies to negate the contention of the Petitioner to make the
GR applicable to his case.
12. The decision of the Bombay High Court in the case of
Krantikumar Kishanrao Kaulwar and Anr. vs. Maharashtra Public Service
Commissioner and Anr.5 also goes against the Petitioner inasmuch as this
Court observed that benefit of age relaxation to economically backward
class for open category cannot be given for recruitment for post of Civil
Judge, Junior Division and Judicial Magistrate, First Class in the absence
of any decision by High Court Administration to amend the Rules
pursuant to provision of the Constitution. What is sought to be
canvassed by the Petitioner is also squarely covered against the
Petitioner by the said decision.
13. The decision of the Supreme Court relied upon by the
Petitioner in the case of High Court of Delhi vs. Devina Sharma6 is also
not applicable to the facts of the present Petitioner since in the case
before the Supreme Court, no examination was conducted during
pandemic, whereas in the State of Maharashtra, recruitment process for
judicial officers was held in 2019, 2020 and 2021. Furthermore on a
complete reading of the decision of the Supreme Court in the case of
5 (2020) 2 Mah LJ 543
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Devina Sharma (supra) it is clear that same was based on a concession
made by the counsel appearing for the Petitioner and therefore the said
decision does not have any precedent value.
14. The Supreme Court in the case of Hirandra Kumar (supra) is
also relevant. The issue before the Supreme Court was that as a result
of Rules 8 and 12 of the Uttar Pradesh Higher Judicial Service Rules,
1975, a candidate who has crossed the age limit prescribed between the
date of last recruitment and the present recruitment was debarred from
appearing in the competitive exam. The High Court permitted the
candidate to appear in the preliminary exam, but the result was directed
to be kept in sealed envelope. In paragraph No.11.5, the Supreme Court
clarified that the directions in Malik Mazhar Sultan and Anr. (supra) are
only general directions issued to all High Courts to hold recruitment
every year subject to the Rules of each High Court. The Supreme Court
further observed that this general directions do not vest any enforceable
right in a candidate. Therefore the reliance placed by the Petitioner in
the case of Malik Mazhar Sultan and Anr. (supra) to seek age relaxation
on the ground that if the time-schedule given by Malik Mazhar Sultan
and Anr. (supra) decision would have been adhered to by the
Respondents then he would not be age barred is also to be rejected. The
Supreme Court further observed that validity of the Rule cannot be
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made to depend on the basis of individual hardships which inevitably
arise in applying a principle of general application a Court in exercise of
the power of judicial review does not take over that function for itself.
In our view, the ratio of this decision squarely applies to reject the
contention of the Petitioner insofar as the age relaxation is sought based
on the decision in the case of Malik Mazhar Sultan and Anr. (supra) is
concerned.
15. In High Court of Kerala vs. Reshma A. and Anr., the above
clarification made by the Supreme Court in the case of Hirandra Kumar
(supra) was further reiterated in paragraph no.41 and argument that the
direction in Malik Mazhar Sultan and Anr. (supra) will prevail over the
provisions contained in the Rule was rejected. The Supreme Court in
paragraph no.76 expressly rejected the contention of the Petitioner that
on account of pandemic the recruitment process was delayed and the
Petitioner should be given benefit of covid pandemic. Rejecting the said
contention, the Supreme Court observed that a candidate as no vested to
right to appointment nor in equity they are entitled to only on the
ground that the selection is delayed because of covid and the
recruitment has to be in accordance with the Rules. In our view, the
submission of the Petitioner to make Government Resolution dated 17 th
December 2021 applicable on account of pandemic is squarely answered
by the Supreme Court against the Petitioner.
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16. To conclude, the Petitioner is not entitled for age relaxation by
relying upon Government Resolution dated 17th December 2021. The
Writ Petition is dismissed with no order as to costs.
(JITENDRA JAIN, J.) (A. S. CHANDURKAR, J.)
Signed by: Sayyed Saeed Ali
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Designation: PA To Honourable Judge
Date: 25/01/2024 20:19:24
