Ghanashyam Muduli and Others vs Orissa Public Service Commission and Others

B.K. Patel, J.—The Petitioners in this writ application have made prayers to quash the Clause-4 (ii) of the Advertisement No. 6 of 2009-10 under Annexure-1 inviting application for Orissa Judicial Service Examination, 2010 issued by Opp. Party No. 1, Orissa Pubic Service Commission & to direct the Opp. Parties to relax the age limit prescribed for Socially & Educationally Backward Classes (SEBC) up to 5 years.

Petitioners are stated to be the practising Advocates of Orissa High Court eligible for appointment to the post of Civil Judge under the Orissa Superior Judicial Service & Orissa Judicial Service Rules, 2007 (for short ''2007 Rules). Petitioner Nos. 1 to 3 belong to SEBC. Advertisement under Annexure-1 was issued on 18th February, 2010 inviting applications for Orissa Judicial Service Examination, 2010 fixing the last date of submission of application to 18.3.2010. As per Clause-4 of the Advertisement, in order to be eligible to apply for the examination, a candidate must not be below 21 years & above 32 years of age. It has been further provided that the prescribed upper age limit will be relaxable, interalia, up to a maximum of 3 years in the case of a candidate belonging to SEBC, who is eligible to avail of reservation applicable to such candidate. It is averred that stipulation for relaxation up to a maximum age of 3 years only in case of SEBC is not in conformity with the provision u/s 6 of the Orissa Reservation of Posts & Services (for Socially & Educationally Backward Classes) Act, 2008 (for short ''2008 Act''), which provides, inter alia, that for appointment of candidates belonging to SEBC to the post of services under the State, the upper age limit prescribed for the recruitment shall be increased by five years. 2008 Act has been enacted to fulfill the obligation of the State under Article 16(4) of the Constitution of India to foster social & economic advancement of the people belonging to SEBC. Impugned Advertisement under Annexure-1 has been issued under the provisions of 2007 Rules after coming into force of the 2008 Act. Relaxation of upper age limit of candidates belonging to SEBC up to a maximum 3 years under Annexure 1 is not in conformity with the provisions under the 2008 Act & has deprived the Petitioners of being eligible to be considered for appointment to Orissa Judicial Service inasmuch as the four Petitioners are aged 36, 34,33 & 33 respectively. Therefore, the impugned provision in Clause-4 under Annexure-1 is illegal & opposed to law & public policy. It is further averred that Rule 47 of the 2007 Rules provides that where the Government in consultation with the High Court is satisfied that it is necessary or expedient so to do, it may by order, for reasons to be recorded in writing, relax any of the provisions of said rules with respect to any class or category of persons or posts in the service. As the Advertisement has been issued in accordance with 2007 Rules, provision under which is not in conformity with 2008 Act, it is a fit case in which direction for exercising jurisdiction under Rule 47 of 2007 Rules should be issued to relax the age limit of candidates belonging to SEBC up to a maximum of 5 years.

It is the further case of the Writ Petitioners that provision relating to age limit of candidates under Clause-4 of the Advertisement to be not below 21 years of age is also an outcome of non-application of mind & discriminatory inasmuch as normally a candidate can obtain Three Years Course law degree on completion of minimum 23 years of age & a candidate can obtain 5, Years Course law degree on completion of 22 years of age. Therefore, the minimum age limit of the candidates should be fixed at 23 years & consequently, the maximum age limit should be extended to 35 years.

It was contended by the Learned Counsel for the Petitioners that all the four Petitioners have submitted applications in response to Advertisement under Annexure-1. However, in view of stipulation regarding age limit made under Clause-4 of the Advertisement, their applications would certainly be rejected. It was further contended that 2008 Act was not in force when 2007 Rules were made. 2008 Act, enacted by the State Government in order to fulfill the obligation u/s 16(4) of the Act, provides for increase of upper age limit prescribed for recruitment to the post or service under the State by five years. For all intent & purpose Orissa Judicial Service also constitutes one of the services under the State. Therefore, provision for relaxation of age of candidates belonging to SEBC up to a maximum of three years for recruitment to the post under the Orissa Judicial Service is discriminatory & illegal. It was further argued that while stipulating the age limit to be not to be below 21 years under 2007 Rules, ground realities have not been taken into account. Normally a student completes Class-X at the age of 15 years. Three Years Degree Course in law is open for admission to holders of graduate degree obtained after prosecuting study for minimum 5 years. Therefore, normally, candidate pursuing Three Years Course law degree would become a law graduate on completion of minimum age of 23 years. Five Years'' Degree Course in law is open for admission to candidate on completion of +2 course. Therefore, candidate pursuing Five Years'' Degree Course in law would normally become law graduate after completing 22 years of age. Therefore, the minimum age limit of 23 years should have been prescribed under the 2007 Rules. Consequently, the upper age limit also should have been prescribed at 35 years.

As the case was heard at the admission stage, no counter was filed. On the other hand Learned Government Advocate appearing on behalf of the Opp. Parties submitted that as the Advertisement under Annexure-1 has been issued in accordance with the provisions under the 2007 Rules made by the Governor in consultation with Orissa Public Service Commission & the High Court, there is no scope for the Petitioners to assail the validity of stipulations under Clause-4 thereof. It was vehemently contended that 2008 Act has been enacted in exercise of power conferred under Article 309 of the Constitution in order to regulate the recruitments & conditions of services of persons appointed to public services & posts in connection with the affairs of the State. However, so far as recruitment to Orissa Judicial Service is concerned, the same is governed under the 2007 Rules. Constitution itself has made distinction between the judicial service & other public services under the State. 2007 Rules, so far it relates to Orissa Judicial Service, have been framed in exercise of power under Article 234 of the Constitution for recruitment of persons to Judicial Service under Chapter-VI. Article 234 of the Constitution is not circumscribed by any other provision of the Constitution & provision made therein need not conform to legislations enacted by State Legislature 2007 Rules are independent of 2008 Act. The State Legislature cannot make law dealing with recruitment to the Judicial Service for which provisions have been made in the Constitution itself in Chapter-VI under Article 233 - 236. So far as recruitment to the Judicial Service is concerned, provisions are to be made by the Governor in consultation with the High Court & State Public Service Commission. In the matter of appointment to Judicial Service, it has been consistently held in authoritative judicial pronouncements that in the case of Subordinate Judicial Service it is the High Court who have full knowledge for deciding provisions relating to concession to be accorded to backward classes which would be consistent with the maintenance of efficiency of judicial administration. Provisions under the 2007 Rules have been made in consultation with the High Court. Validity of any of the 2007 Rules cannot be questioned on the ground of inconsistency with 2008 Act.

We have heard the Learned Counsel for the Petitioners & Learned Government Advocate & perused the record. The impugned Clause-4 in the Advertisement for Orissa Judicial Service Examination, 2010 prescribing age limits for recruitment to the posts of Civil Judges in Orissa Judicial Services reads:

AGE LIMITS:

A candidate must not be below 21 (twenty-one) years of age & not above 32 (thirty-two) years of age on the 1.8.2010 & he/she must not have been born earlier than the 2.8.1978 & not later than the 1.8.1989.

The upper age limit prescribed above will be relaxable:

(i) Up to a maximum of five years, if a candidate belongs to Scheduled Caste (S.C.) or Scheduled Tribe (S.T.), or a woman, or an orthopaedically handicapped (O.H.);

(ii) Up to a maximum of three years in the case of a candidate belonging to Socially & Educationally Backward Classes (SEBC), who is eligible to avail of reservation applicable to such candidate.

Such provision in the Advertisement is in accordance with provision contained under Sub-rule (1) of Rule-18 of the 2007 Rules, which reads:

xx xx (1) In order to be eligible for recruitment to the service as Civil Judge a candidate must be:

(a) a graduate in law of a recognized University or institutions recognized by the Government;

(b) not below twenty one years of age & not above thirty two years of age on the 1st day of month of the August of the year in which applications are invited:

Provided that the maximum age limit shall be relaxed by 5 years in case of the S.C., Scheduled Tribes, Women & Orthopaedically Handicapped candidates & by 3 years in case of candidates belonging to SEBC.

Therefore, the Petitioners in this writ application in effect assail the provisions under Clause (b) of Sub-rule (1) of Rule 18 of the 2007 Rules so far as it relates to relaxation of age limits in case of candidates belonging to SEBC by three years. 2007 Rules have been framed in exercise of power conferred by the proviso to Article 309 read with Articles 233, 234 & 235 of the Constitution of India by the Governor of Orissa after consultation with Orissa Public Service Commission & the High Court. So far as Rule 18 of the 2007 Rules is concerned, it occurs under Part-V of the Rules dealing with recruitment of Civil Judge. Article 234 of the Constitution of India lays down the provisions for recruitment of persons other than district judges to the judicial service. It reads:

Recruitment of persons other than district judges to the judicial service.- 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 & with the High Court exercising jurisdiction in relation to sue State.

Article 309 of the Constitution of India laying down provisions for recruitment & conditions of service of persons serving the Union, or a State occurs under Part-XIV. Article 309 of the Constitution reads:

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

Thus, it is evident that while Article 309 of the Constitution deals with recruitment & conditions of service of persons appointed to public services & posts in connection with the affairs of the Union or of any State, Article 234 of the Constitution exclusively deals with recruitment of persons other than district judges to the "judicial service" which has been defined under Article 236 of the Constitution to mean a service consisting exclusively of persons intended to fill the post of district judge & other civil judicial posts inferior to the post of district judge. While exercise of power under Article 309 of the Constitution is subject to the provisions of the Constitution, provisions under Article 234 of the Constitution have not been made subject to the provisions under the Constitution. Therefore, obviously, power under Article 309, conferred appropriate legislature, is subject to the provisions under Article 234 of the Constitution.

Legislature of the State has enacted different statutes for regulating the recruitment & conditions of service of persons appointed to public services & posts in connection with the affairs of the State of Orissa. Clauses-(1) & (2) of Article 16 of the Constitution guarantee equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State without discrimination on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. However, Clause-4 of Article 16 of the Constitution enables the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. In exercise of jurisdiction conferred under Article 309 read with Article 16(4) of the Constitution, the State Government has made provisions for reservation in the matter of appointments or posts in favour of backward classes. The Orissa Reservation of Vacancies in Posts & Services (for Scheduled Castes & Scheduled Tribes) Act, 1975 provides for reservation in favour of members of Scheduled Castes & Scheduled Tribes. So far as members of SEBC are concerned, 2008 Act was enacted after the 2007 Rules were framed. Section 6 of the 2008 Act read as follows:

Section-6. For appointment of candidates belonging to Socially & Educationally Backward Class:

(a) the upper age limit prescribed for the recruitment shall be increased by five years; &

(b) any other relaxation or concession may be allowed by the State Government as may be prescribed.

The stand of the Petitioners to the effect that provision for relaxation of upper age up to three years provided under 2007 Rules, being inconsistent with the provision u/s 6 of the 2008 Act providing for increase of upper age limit by five years for appointment of candidates belonging to SEBC, is illegal, cannot be countenanced in view of the reason that exercise of power under Article 234 of the Constitution is independent of other provisions under the Constitution including Article 309. Principle in this context has been well settled by the Hon''ble Supreme Court.

While considering the scope & ambit of the power under Articles 233 & 234 of the Constitution of India, it was held by a Constitution Bench of Hon''ble Supreme Court in State of Bihar and Another Vs. Bal Mukund Sah and Others, which reads as follows:

Article 309 is expressly made subject to other provisions of the Constitution & subject to that, appropriate Legislature or Governor can regulate the recruitment & conditions of service of persons appointed to public services & posts in connection with the affairs of the State concerned. Proviso to that Article permits the Governor of the State to fill up the gap, if there is no such statutory provisions governing the aforesaid topics. For that purpose, the Governor may make rules regulating the recruitment & the conditions of service of persons appointed to such services & posts until provision in that behalf is made by or under an Act of the competent legislature which may intervene & enact appropriate statutory provisions for the same. Independently of general provisions of Article 309, the Constitution has made special provisions for certain Services. Even if they may be part of public services, still separate Constitutional schemes are envisaged for regulating recruitment & conditions of services of officers governed by such Services. Chapter VI of Part VI deals with the subordinate Courts. It is in Chapter VI dealing with the Subordinate Courts provision is made for appointment of District Judges under Article 233, recruitment of persons other than the District Judges to the Judicial Services under Article 234 & also Control of the High Court over the Subordinate Courts as laid down by Article 235. Article 236 deals with the topic of ''Interpretation'' & amongst Ors., defines by Sub-article (b) the expression "judicial service" to mean a service consisting exclusively of persons intended to fill the post of District Judge & other civil judicial posts inferior to the post of District Judge. It becomes, therefore, obvious that the (sic)mers of the Constitution separately dealt with ''Judicial Service'' of the State & made exclusive provisions regarding recruitment to the posts of District Judges & other civil judicial posts inferior to the posts of the District Judge. Thus these provisions found entirely in a different part of the Constitution stand on their own & quite independent of Part XIV dealing with Services in general under the ''State''. Therefore, Article 309, which, on its express terms, is made subject to other provisions of the Constitution, does get circumscribed to the extent to which from its general field of operation is carved out a separate & exclusive field for operation by the relevant provisions of Articles dealing with Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution.

While Article 309 deals with recruitment & conditions of service of persons serving the Union or the State, a particular category of post forming the judicial wings has been carved out in Chapter VI in Articles 233 - 235 so far as the question of recruitment is concerned. When Article 309 itself uses the expression "Subject to the provisions of this Constitution" it necessarily means that if in the Constitution there is any other provision specifically dealing with the topics mentioned in said Article 309, then Article 309 will be subject to those provisions of the Constitution. In other words, so far as recruitment to the judicial services of the State is concerned, the same being provided for specifically in Chapter VI under Articles 233 - 237, it is those provisions of the Constitution which would override any law made by the appropriate legislature in exercise of power under Article 309 of the Constitution. The State legislature undoubtedly can make law for regulating the conditions of services of the officers belonging to the judicial wing but cannot make law dealing with recruitment to the judicial services since the field of recruitment to the judicial service is carved out in the Constitution itself in Chapter VI under Articles 233 - 236 of the Constitution.

xx xx In this regard the scheme of the Constitution & its basic framework that the Executive has to be separated from the Judiciary has to be kept in view. Hence the general sweep of Article 309 has to be read subject to this complete Code regarding appointment of District Judges & Judges in the Subordinate Judiciary.

Notwithstanding validity of impugned Clause-4 in the Advertisement under Annexure 1, we observe that 2007 Rules were made before enactment of 2008 Act. 2008 Act was enacted in exercise of power conferred under Clause-4 of Article 16 of the Constitution. In order to make adequate representation of persons belonging to SEBC of the State, it has been provided u/s 3 of the 2008 Act that there shall be reserved 27% of the posts & services under the State, in case of direct recruitment for SEBC subject to the exclusion of creamy layer. The State Legislature has in its best wisdom, provided age relaxation of five years for candidates belonging to SEBC. Though there is no obligation under Article 234 of the Constitution to conform to the provisions made by Legislature in the matter of recruitment to the posts & services under the State, we are of the considered Judgment that provision relating to age relaxation of candidates belonging to SEBC as contained under Rule 18 of the 2007 Rules requires reconsideration in the light of provision for relaxation made under 2008 Act. The reason being, prima facie, we do not find any justification for inconsistency between 2007 Rules & 2008 Act in this regard. Members of the judicial service as well as members of other services under the State represent the same social fabric in the State. Therefore, Article 14 as well as Article 16(4) of the Constitution requires that there should not be inequality of treatment to the citizens who are equally placed.

Also, considering the fact situation, we are of the opinion that Rule 18(1) (b) of 2007 Rules, prescribing age limits of candidates for the post of Civil Judge to be not below 21 years & not above 32 years, does not subserve the purpose because normally to become graduate in law for a candidate pursuing Three Years Law Degree Course the minimum age would be 23 years & pursuing Five Years Law Degree Course the minimum age would be 22 years. As the 2008 Act has come into force after framing of 2007 Rules, we are of the considered opinion that general provision relating to age limit as well as provision relating to age relaxation of candidates belonging to SEBC as contained under Rule 18(1) (b) of the 2007 Rules require reconsideration in the light of provision under 2008 Act.

In the case of Union of India and Anr. v. Deoki Nandan Aggarwal AIR 1992 SC 96 the Apex Court observed that:

It is not the duty of the Court either to enlarge the scope of the legislation. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Court.

In the case of District Mining Officer and Others Vs. Tata Iron and Steel Co. and Another, the Hon''ble Supreme Court held that function of the Court is only to expound the law & not to legislate.

In Government of Orissa and Another Vs. Hanichal Roy and Another, the Hon''ble Supreme Court considered the case wherein the High Court had granted the relaxation of service conditions. The Apex Court held that the Court cannot take upon itself the task of the Statutory Authority & only order which Court could have passed was directing the Government to consider relaxation itself forming an opinion in view of the statutory provisions as to whether the relaxation was required in the facts & circumstances of the case. Issuing such a direction by the Court is illegal & impermissible. Similar view has been reiterated by the Hon''ble Supreme Court in A. Umarani Vs. Registrar, Cooperative Societies and Others, .

In view of the above legal proposition, it is not proper for this Court to direct the Government to make or amend the law in a particular manner.

Therefore, we direct the Registry of this Court to draw the attention of the State Government for consideration of amendment of the provision under Rule 18 (1)(b) of 2007 Rules in the light of observations made above. As such consideration may be time consuming, the State Government may resort to provision under Rule 47 of the 2007 Rules in this regard for the time being.

With the aforesaid observations & directions, the writ application is disposed of.

V. Gopalagowda, C.J.

I agree.