Swaran Vibha Pandey vs The State Of Madhya Pradesh
2021 Latest Caselaw 5372 MP

    HIGH COURT OF MADHYA PRADESH : JABALPUR
                  (Division Bench)

                             W.A. No.382/2020

                           Swaran Vibha Pandey
                                  -Versus-
                          State of M.P. and others

Shri K.C. Ghildiyal, Advocate for the appellant.
Shri Ashish Anand Barnad, Deputy Advocate General for the
respondents/State.
----------------------------------------------------------------------------------
CORAM :

      Hon'ble Shri Justice Mohammad Rafiq, Chief Justice.
      Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
---------------------------------------------------------------------------------
Whether approved for          Yes.
reporting ?
                            *A Rules in nature of administrative instructions
Law laid down               without any statutory force, cannot be said to be
                            enforced by maintaining a writ petition under
                            Article 226 of the Constitution of India.

                            *Administrative action - Executive Instructions,
                            if are in conflict with statutory provisions, the
                            later will prevail. But in absence of any conflict,
                            both will prevail.

                            *Any      departmental letter or executive
                            instruction cannot prevail over statutory rule and
                            constitutional provisions

Significant paragraph         8,9 & 10.
No(s).
        [Hearing convened through virtual/physical mode]
                       JUDGMENT

(Jabalpur, dtd.14.9.2021)

Per : Vijay Kumar Shukla, J.-

The present intra-court appeal has been filed under

Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand

Nyaypeeth ko Appeal) Adhiniyam, 2005 being aggrieved by the

order dated 17-01-2020 passed by the learned Single Judge in WP-

7265-2018 [Swaran Vibha Pandey vs. State of M.P. and others],

whereby the writ petition filed by the writ-petitioner/appellant

[hereinafter referred to as "the appellant"] has been dismissed. The

appellant has challenged the order dated 23-01-2018 passed by the

Selection Committee and further sought for a direction to the

respondents to appoint the appellant on the post of Forest Guard.

2. In pursuance to the advertisement issued by the

respondents No.6, the appellant submitted her candidature for

appointment on the post of Kshetrarakshak Seoni and Vanrakshak

Hoshangabad in Jail Vibhag, Karyalaya Pradhan Mukhya Van

Sanrakshak and Rajya Van Vikas Nigam Limited Bhopal Combined

Recruitment Test, 2017. The petitioner passed the written

examination and she was declared qualified for second phase. After

declaration of the result of the written examination, the letter dated 9-

01-2018 was issued by the respondent No.4, asking the appellant to

appear for Biometric Examination, documents verification and

physical measurement on 23-01-2018 and for walking test on 24-01-

2018.

3. The appellant appeared on the said date as directed for

appointment on the post of Kshetrarakshak, Seoni. During course of

documents verification the Selection Committee declared the

appellant disqualified on the ground that she had crossed the upper

age limit of 30 years as fixed by the respondent No.6. The appellant

submitted a representation to the respondent No.4 taking the plea that

vide Circular dated 12-5-2017 issued by the respondent No.2,

relaxation of age upto 45 years has been extended to the women

candidates, but the said representation was rejected.

4. The respondents filed their reply taking the stand that

since the appellant has crossed the maximum age limit prescribed

under the Madhya Pradesh Class-III (Non-Ministerial) Forest Service

Recruitment Rules, 2000 [hereinafter referred to as "the Recruitment

Rules"], therefore, she is not eligible for consideration. The

respondents placed reliance on Rule 8(1) of the Recruitment Rules

which provides for the minimum age and the post for which

relaxation in age can be granted. The said rule being useful to refer,

is extracted hereunder :

"8. Condition of Eligibility of Direct Recruitment.- In order to be eligible for selection/competitive examination, the candidate must satisfy the following conditions, namely -

(1) Age : (a) He must have attained the age as prescribed in Column (3) of Schedule III, and not attained the age as mentioned

in Column (4) of the said Schedule on the first day of January next following the date of commencement of selection.

(b) The upper age limit shall be relaxable upto a maximum of 5 years if a candidate belongs to Scheduled Caste, Scheduled Tribe and Other Backward Classes.

(c) The upper age limit shall be relaxable upto maximum of 10 years to a woman candidate in accordance with the provision of Rule 4 of the Madhya Pradesh Civil Services (Special Provisions for Appointment of Women) Rules, 1997: [Provided that the above provision shall not be applicable for the recruitment on the post of Forest Guards.]

(d) The upper age limit shall also be relaxable in respect of candidates who are or have been employees of the Madhya Pradesh Government to the extent and subject to the conditions specified below :

(i) A candidate who is a permanent Government Servant should not be more than 38 years of age.

(ii) A candidate holding post and applying for another post should not be more than 38 years of age. This concession shall also be admissible to contingency paid employees, workcharged employees and employees working in the Project Implementing Committee.

(iii) A candidate who is a retrenched Government Servant shall be allowed to deduct from his age the period of all temporary services previously rendered by him up to maximum limit of 7 years even if it represents more than one spell provided that the resultant age does not exceed the upper age limit by more than 3 years."

5. The learned counsel appearing for the appellant heavily

relied on the Circular dated 12-5-2017 and submitted that the

maximum aged limit has been relaxed for women candidates upto 45

years and, therefore, the appellant is entitled to the benefit of the said

Circular. It is further submitted that if the Jail Department followed

the GAD Circular without any amendment in the Recruitment Rules,

why it could not have been done in the case of the Forest

Department, as both are the Departments of the same Government.

It is further argued that the State Government cannot take a stand that

the Circular dated 12-5-2017 is contrary to the statutory provisions.

Hence, it should not have been given effect to and it cannot override

the statutory provisions. Can the said Circular be declared illegal at

the instance of the State Government. The State cannot be permitted

to plead before the Court that their Circular be declared illegal by a

judicial pronouncement. In this regard reliance is placed on the

decision of the Apex Court rendered in the case of Pune Municipal

Corporation and another vs. Kausarbag Co-operative Housing

Society Limited and another, (2014) 15 SCC 753.

6. The respondents have taken a specific stand in the return

that the M.P. Rajay Van Vikas Nigam Limited has adopted the

Recruitment Rules. It is strenuously urged that the nature of duties,

functions and responsibilities of a Field Man is similar/akin to that of

a Forest Guard. As per the Recruitment Rules the minimum age limit

for appointment on the post of Forest Guard is 18 years and the

maximum age limit is 30 years.

7. From a perusal of the Rule 8 it is luminescent that age

relaxation of 10 years granted to the female candidates is not

applicable in the case of women candidates for being appointed as a

Forest Guard/Field Man of the M.P. Rajya Van Vikas Nigam. In

regard to the Circular issued by the General Administration

Department dated 12-5-2017, it is putforth that the maximum age

limit for direct recruitment in case of female candidates is 45 years,

but the said Circular would not be applicable in the case of the

appellant, as there is no amendment in the Recruitment Rules. It is

submitted that after issuance of the said Circular a clarification was

issued by the Jail Department on 25-5-2017 in which it is stipulated

that the maximum age limit for a female candidate would be 45 years

in view of the Circular dated 12-5-2017 but, no such clarification

was issued either by the respondents or by the Forest Department.

8. The respondents have further canvassed that a general

circular cannot override the Recruitment Rules. Unless the

Recruitment Rules are amended the benefit of relaxation of upper age

limit cannot be granted to the appellant. It is well settled law that

Circulars or Executive Instructions cannot override the statutory

rules. We are examining the issue that whether the appellant is

entitled for relaxation of age as per Recruitment Rules or not.

Apparently, the Rules do not permit relaxation of age of women

candidates in the case recruitment on the post of Forest Guards.

Therefore, there is no merit in the contention of the learned counsel

for the appellant that the State cannot take a stand that the Circular is

contrary to the Recruitment Rules. The factual position is that the

relaxation of age to female candidates is not applicable in the case of

female candidates for being appointed as Forest Guard/Field Man in

the Madhya Prajya Van Vikas Nigam. The judgment relied upon by

the learned counsel for the appellant in Pune Municipal

Corporation and another (supra) would not apply in the facts of

the present case where the statutory rules are specific and

unequivocally provides that benefit of relaxation of upper age limit

cannot be granted to the recruitment to the post of Forest Guards.

The Circular dated 12-5-2017 would not be applicable in the case of

the appellant herein.

9. A five Judges Bench of the Apex Court in the case of

The State of Assam and another vs. Ajit Kumar Sarma and

others, AIR 1965 SC 1196, held that the Rules in nature of

administrative instructions without any statutory force, cannot be

said to be enforced by maintaining a writ petition under Article 226

of the Constitution of India.

10. In another decision rendered in the case of DDA and

others vs. Joginder S. Monga and others, (2004) 2 SCC 297 the

Supreme Court ruled that Administrative action - Executive

Instructions, if are in conflict with statutory provisions, the later will

prevail. But in absence of any conflict, both will prevail.

11. The Apex Court in the case of Punjab Water Supply &

Sewerage Board vs. Ranjodh Singh and others, (2007) 2 SCC 491

in para 19 of the judgment held that any departmental letter or

executive instruction cannot prevail over statutory rule and

constitutional provisions.

12. In this connection, we may usefully refer to the judgment

of the Supreme Court in State of Orissa vs. Prasana Kumar Sahoo,

(2007) 15 SCC 129. Their Lordships of the Apex Court, while

dealing with a similar situation of conflict between executive

instructions and statutory rules, in para - 12 of the report, held as

under :

"12. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient tot he recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions."

Similar view has been taken by the High Court of Orissa at

Cuttack in the case of Gopinath Sahu vs. State of Orissa and

others, AIR 2020 Ori 150.

13. In the present case, the Circular dated 12-5-2017, which

is a general circular regarding grant of age-relaxation to the

candidates, would not override the specific provisions of the Rule

8(1) of the Recruitment Rules.

14. In the conspectus of the aforesaid enunciation of law, we

do not perceive any illegality in the impugned order passed by the

learned Single Judge, warranting any interference in the present

intra-court appeal. Accordingly, the writ appeal being sans merit,

is dismissed without any order as to costs.

      (Mohammad Rafiq)                          (Vijay Kumar Shukla)
        Chief Justice                                  Judge




ac.

Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.09.20 18:03:17 +05'30'