Anil Kumar Sharma S/O Sh. Mohan Lal ... vs Rajasthan High Court
2021 Latest Caselaw 3002 Raj/2

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR



                  D.B. Civil Writ Petition No. 6646/2021

Anil Kumar Sharma S/o Sh. Mohan Lal Sharma, Aged About 48
Years, By Profession Advocate, R/o Village And Post Umara, Via
Khachariyawas, Ward No.3, Tehsil Dantaramgarh, Distt. Sikar,
Rajasthan.
                                                                        ----Petitioner
                                        Versus
1.       Rajasthan High Court, Jodhpur through Registrar General,
         Jodhpur.
2.       State of Rajasthan, Through Principal Secretary (Law),
         Government Secretariat, Jaipur.
                                                                     ----Respondents

For Petitioner(s) : Mr. Shiv Charan Gupta

HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

19th July, 2021

Per Hon'ble Mr. Sangeet Lodha, J.

1. This writ petition has been filed by the petitioner, an aspirant

for appearing in the competitive examination for Direct

Recruitment to the cadre of District Judge against the vacancies

belonging to Economically Weaker Section (EWS) category,

notified by the respondent-Rajasthan High Court vide notification

dated 05.01.2021 issued under the Rajasthan Judicial Service

Rules, 2010 ('Rules of 2010'), claiming relief in the following

terms:

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"(i) Respondents may be directed to provide relaxation in upper age limit by five years for the candidate belonging to EWS reserved category also as has been provided to other reserved category candidates, in the matter of direct recruitment to the cadre of District Judge being made in pursuance the notification dated 05.01.2021 (Annexure-1).

(ii) Respondents may be directed to accept the application (hard copy) of the petitioner with required examination fee, for direct recruitment to the cadre of District Judge being made in pursuance the notification dated 05.01.2021 (Annexure-1).

(iii) Pleased to direct the respondents to consider the petitioner within age limit after giving the benefit of age relaxation and thereby consider him for the recruitment, selection and appointment on the basis of his merits, in the competitive examination and if found within the merit then recruit and give him appointment with consequential benefit.

(iv) Pleased to declare Rule 33 of the Rajasthan Judicial Service Rules, 2010 unconstitutional and struck down Clause-7 of the notification dated 05.01.2021 (Annexure-1) and further direct the respondents to issue corrigendum making suitable amendment giving benefit of age upper age relaxation to the candidates of EWS reserved category.

(v) Pleased to direct the respondents to make provision for relaxation of upper age limit by 5 years for the candidates belonging to reserved category of EWS, in the Rules of 2010 as well in the notification dated 05.01.2021 (Annexure 1) by issuing appropriate order and corrigendum.

(vi) Any other order or direction which this Hon'ble Court deems fit may also be passed in the facts and circumstances of the case in favour of the humble petitioners."

2. The facts relevant are that the direct recruitment to the

District Judge Cadre in the State of Rajasthan is governed by

Rules of 2010. Eligibility for direct recruitment to the posts of

District Judge Cadre from amongst the advocates is provided

under Rule 33 of the Rules of 2010. The High Court under the

Rules of 2010 issued an advertisement dated 05.01.2021 inviting

applications from the eligible candidates in the prescribed online

format for direct recruitment to 60 vacant posts in the cadre of

District Judge in accordance with the Rules of 2010. The

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particulars of the total vacancies and the vacancies reserved for

various categories including the category of EWS were duly

notified. As per the notification issued, 6 posts are reserved for

EWS category, which include 1 post for women.

3. As per clause (i) of Rule 33, the candidate applying for

recruitment to the post must have attained age of 35 years and

must not have attained the age of 45 years on the first day of

January following the last date fixed for receipt of applications.

Proviso (a) to clause (i) of Rule 33 provides relaxation of five

years in upper age limit to the candidates belonging to the

Scheduled Castes, Scheduled Tribes, Other Backward Classes,

More Backward Classes and Women Candidates. The relevant part

of Rule 33 of the Rules of 2010 in force at the time of issuance of

the notification for recruitment, may be beneficially quoted:

"33. Eligibility for direct recruitment.- For the purpose of direct recruitment under sub-rule (3) of Rule 31, applications shall be invited by the Court from those Advocates, who fulfil the following conditions of eligibility:-

(i) must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January following the last date fixed for receipt of the applications;

Provided that

(a) the upper age limit mentioned above shall be relaxed by 5 years, in case of candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, "More Backward Classes and Women Candidates.

....x.xxxxxx........"

4. Apparently, Rule 33 (i)(a) did not provide for relaxation of

age in case of candidate belonging to EWS category though, the

provision for reservation of the vacancies for Economically Weaker

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Sections was inserted by way of sub-rule (6) of Rule 10 of the

Rules of 2010 vide notification dated 21.08.2020 and thus, in the

advertisement issued, the relaxation in age was rightly not

provided for EWS category.

5. Precisely, the case of the petitioner is that when the

relaxation in age is provided for Other Reserved Category

candidates i.e. the candidates belonging to SC, ST, OBC, MBC and

Women categories, EWS category could not have been picked up

for a different treatment being given, particularly when, the

required amendment providing 5 years relaxation in upper age

limit has already been made in relevant recruitment rules

governing other State services in the State of Rajasthan.

6. Learned counsel for the petitioner submitted that during the

pendency of the present petition, vide notification dated

30.06.2021 issued by the State Government in consultation with

the Rajasthan Public Service Commission and the Rajasthan High

Court, has already amended Rule 33 of the Rules of 2010,

whereby the expression "Economically Weaker Sections" has been

inserted in proviso (a) of sub-rule (i) of Rule 33 after the

expression "More Backward Classes" and before the expression

"and Women Candidates" and thus, the relaxation in upper age

limit stands extended to EWS category as well. Learned counsel

submitted that the State Government vide circular dated

07.04.2021 in contemplation of the amendment had directed to

defer the recruitment process so as to extend the benefit of the

age relaxation to EWS category in the pending recruitment as well

where the examination has not been conducted and thus, there is

no reason as to why the provision providing for relaxation in upper

age limit to EWS category should not be made applicable to the

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recruitment process initiated by the High Court vide notification

dated 05.01.2021 issued under the Rules of 2010. Learned

counsel submitted that in view of the amendment made, the

directions deserve to be issued to the respondents to issue the

corrigendum and invite the applications from the candidates

belonging to EWS category, who are eligible to apply for

recruitment to the post availing the age relaxation. In support of

the contention, learned counsel relied upon a decision of the

Supreme Court in Richa Mishra vs. State of Chhatisgarh & Ors.:

(2016) 4 SCC 179.

7. We have considered the submissions of the learned counsel

and perused the material on record.

8. Indisputably, vide notification dated 05.01.2021 issued by

the respondent-Rajasthan High Court under the Rules of 2010, the

applications are invited from eligible advocates for direct

recruitment to the cadre of District Judge against the vacancies of

the year 2019-20 and 2020-21 including the backlog vacancies of

Scheduled Castes and Scheduled Tribes of the year from 2011-12

to 2018-19.

9. It is noticed that the provision reserving 10% of vacancies

for EWS in the direct recruitment in addition to the existing

reservation was incorporated in the Rules of 2010 vide notification

dated 21.8.20 but, no relaxation in upper age limit was provided

for candidates belonging to the said category. Thus, apparently,

the notification inviting applications issued by the respondent not

providing for age relaxation to the candidates belonging to EWS

category is in conformity with the provisions of Rules of 2010.

10. The petitioner has filed the present writ petition seeking

directions to the respondent to provide relaxation in upper age

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limit by five years as has been provided to other reserved

category candidates. It has come on record that during the

pendency of the petition, the Governor of Rajasthan in

consultation with Rajasthan Public Service Commission and

Rajasthan High Court, in exercise of the power conferred by Article

233 & 234 read with proviso to Article 309 of the Constitution of

India, has issued notification dated 30.06.21, whereby by

amending the Rule 17 & Rule 33 of the Rules of 2010, the

candidates belonging to EWS category, have also been extended

the benefit of relaxation in upper age limit by five years. From

perusal of the notification amending the Rule 17 & Rule 33, in no

manner, it can be inferred that the amended provision providing

relaxation in upper age limit to EWS category is intended to be

applied to the pending selections by giving it retrospective effect.

11. It is well settled that the eligibility qualification for

recruitment to the post shall be governed by the rules existing as

on the date of the issuance of the advertisement inviting

applications and the amendment in the rules if any, unless it is

expressly or by necessary implication made to have retrospective

effect shall always be construed prospective in nature.

12. In P. Mahendran & Ors. vs. State of Karnataka & Ors. : AIR

1990 SC 405, held:

"5. It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision, or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express

(7 of 12) [CW-6646/2021]

provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover, as the process of selection had already commenced when the amending Rule came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter." (emphasis supplied)

13. In NT Bevin Katta & Ors. vs. Karnataka Public Service

Commission & Ors.: (1990) 3 SCC 157, the Hon'ble Supreme

Court while dealing with the issue regarding retrospective

applicability of the amended rules, held:

"11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and government orders. Candidates who apply and undergo written or viva voice test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement; however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest

(8 of 12) [CW-6646/2021]

there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."

14. In Mohan Kumar Lal vs. Vinoba Bhave University & Ors.:

(2002) 10 SCC 704, the Hon'ble Supreme Court while dealing with

the question regarding applicability of the reservation policy

introduced subsequent to issuance of the advertisement inviting

application for appointment to the post, observed:

"The short question that arises for consideration in this appeal is whether the Service Commission could ignore the decision to make reservation policy applicable in respect of an appointment to the post, which was advertised on 10. 1.1990, and the last date for submission of the application was 30-1-1990. The High Court in the impugned judgment is of the view that since appointments had not factually been made, the reservation policy would apply. As it transpires, the provisions of Section 57, which governs the field, did not contain any clause for reservation and Sub-section (5) of said Section 57 providing for reservation was introduced only on 22-8-1993. In this view of the matter, in respect of post advertised for which the process of recruitment had been initiated, the reservation policy could not have been made applicable. The impugned judgment of the High Court was, therefore, erroneous, and cannot be sustained. We, therefore, set aside the impugned judgment of the High Court and hold that the reservation policy, pursuant to the amended provision of Subsection (5) of Section 57 of the Act, will not apply to the present case." (emphasis supplied)

15. In Chanan Ram vs. State of Rajasthan & Ors.: (1997) 2 WLC

373, the Rajasthan Public Service Commission had issued an

advertisement inviting applications for recruitment to the posts of

Assistant Director (Junior) on 5.11.93 for filling in the vacancies of

the year 1986-87 to 1992-93 under the provisions of Rajasthan

(9 of 12) [CW-6646/2021]

State Agriculture Marketing Service Rules, 1986, however, the

rules were amended in the month of April, 1995, whereby the

nomenclature of the post of Assistant Director was re-designated

as Marketing Officer and the basic qualifications were also

changed. A Bench of this Court dealing with the issue of

retrospective applicability of the amended rules relying upon

various decisions of the Supreme Court including the decision in P.

Mahendran, categorically held that the vacancies when determined

for a particular year; advertised under the rules as prevalent at

that time, the selection process when started, are to be filled up

by process of selection under the Rules and the amendment if any,

subsequent to the advertisement shall be prospective and no right

which had accrued to the candidates to be considered in response

to the advertisement under the Rules can be taken away.

16. In State of Rajasthan vs. Indu Bala Kumawat & Ors.:

2019(3) WLN 122, the issue before a Bench of this Court was as

to whether the amendment introduced in Regulation 3.4.1 of the

University Grants Commission Regulations, 2010, as amended on

11.7.16, extending relaxation of five marks to Other Backward

Class [OBC (non-creamy layer)] category, which were earlier

available at the graduate and masters level to the candidates of

Scheduled Castes/Scheduled Tribes and Differently Abled

categories would be applicable to the selection process initiated

vide advertisement dated 12.1.15 wherein the last date for

submitting the application was notified as 27.2.15, which was

subsequently extended to 26.3.15 and finally to 31.3.15. The

Court while relying upon the decisions of the Supreme Court in P.

Mahendran and NT Bevin Katti held:

(10 of 12) [CW-6646/2021]

"25. It is settled canon of law that the eligibility conditions and educational qualifications are required to be reckoned as prevailing on the date of the advertisement. In some cases it may however relate to a specific date, mentioned in the advertisement or as per the last date of submitting application form, in tune with the relevant rules.

....xxxx....

27. Any subsequent amendment in the rules providing for different yardsticks, educational qualification or other criteria cannot be made applicable to the recruitment which has begun, as it would amount to changing the rules of game, after the game has started. That apart, if the amended Regulations are held applicable, it would result in injustice and indiscrimination to those similarly situated individuals of OBC category, who had not applied for the post at all, thinking that they having secured less than 55% percentile are not eligible."

17. In the backdrop of position of law settled as above, adverting

to the facts of the present case, it is noticed that Schedule III of

the Rules of 2010 prescribes specific time schedule for

determination and notification of the actual number of existing

and expected vacancies in each cadre as also for conduct of

examination for filling up vacancies in the cadre of District Judge.

It is pertinent to note that the last competitive examination for

recruitment to the posts in the cadre of District Judge was held in

October, 2018. The notification for ensuing examination was

issued by the High Court on 05.01.2021. The eligible candidates

were invited to make online application during the period from

27.01.2021 to 27.02.2021. Later, vide notice dated 10.03.2021,

the last date for submission of the online applications was

extended to 31.03.2021 and for this purpose, the submission of

online application was activated from 1 p.m. on 16.03.2021.

Admittedly, after scrutiny of applications, the respondent-

Rajasthan High Court has scheduled the preliminary examination

on 25.07.2021 and for that purpose, the admission cards of the

candidates have already been uploaded. Thus, at this stage, the

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process of selection cannot be halted/reversed so as to extend the

benefit of age relaxation to EWS category introduced vide

notification dated 30.6.2021, which in no manner could be

construed to be retrospective in nature. The selection process

already initiated pursuant to the advertisement dated 05.01.2021

has to be concluded in accordance with the rules prevalent at the

relevant time.

18. The Government order dated 07.04.2021 directing various

Departments, Commission, Boards etc. to make provision for

relaxation in age and the fee to the EWS category in no manner

militate against the prospectivity of the amended provision

introduced as aforesaid.

19. In Richa Mishra, relied upon by the learned counsel, the

issue involved was that the benefit of age relaxation was extended

to women candidates in 1997 Rules as well as in 2005 Rules but

the same was omitted in the Rules of 2000. After due

consideration, the Supreme Court observed that it was not a case

of casus omissus but was only accidental and thus, keeping in

view the nature of legislation i.e. social justice legislation, the

denial of benefits during the intervening period would defeat the

intention of the rule making authority, which was always to grant

benefit of age relaxation to women candidates. In the considered

opinion of this Court, the said decision of the Supreme Court

rendered taking into consideration the peculiar facts of the case,

in no manner, helps the petitioner.

20. In view of the discussion above, we are firmly of the opinion

that the amendment in Rule 17 & 33 of Rules of 2010 introduced

vide notification dated 30.06.2021 is prospective in nature and

therefore, the selection process initiated for recruitment to the

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posts of District Judge cadre by the respondent against the

vacancies of the years 2019-20 & 2020-21 has to be concluded in

accordance with unamended Rules. The petitioner belonging to

EWS category cannot claim relaxation in age as a matter of right,

dehors the Rules in force at the time of issuance of the notification

inviting applications.

21. The writ petition therefore lacks merits, the same is hereby

dismissed.

(MAHENDAR KUMAR GOYAL),J (SANGEET LODHA),J

ADITYA JOSHI /647

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