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2001 DIGILAW 1547 (RAJ)

Priamvada v. State of Rajasthan

2001-09-24

A.R.LAKSHMANAN, ASHOK PARIHAR

body2001
Honble LAKSHMANAN, CJ.–The prayer in the writ petition reads thus:- i) the respondent be directed to accept the application form of the petitioner for recruitment to Rajasthan Judicial Services and to allow her to appear in the Rajasthan Judicial Service Competetive Examination-2001 being conducted by Rajasthan Public Service Commission, Ajmer irrespective of the fact that petitioner will cross the age of 35 years on 1.1.2002; ii) the respondent be directed to suitably amend the Rajasthan Judicial Service Rules, 1955 so as to make the Notification No.F.7(2) DOP/A-II/84 G.S.R. 40 dated 18.12.87 issued by the Governor of Rajasthan in exercise of its powers under Article 309 providing for age relaxation of widow and divorced women; iii) the respondent be directed to amend the Rajasthan Judicial Service Rules, 1955 so as to provide age relaxation of 5 years in case of women candidates; iv) such other order as your lordship deem proper may also be passed in favour of the petitioner. (2). The petitioner is a divorcee whose marriage was dissolved under Sec. 13 of the Hindu Marriage Act by the Judge, Family Court, Jaipur on 14.7.97. The petitioner was born on 12.5.1964, in proof of it, the petitioner has filed the marks sheet of Secondary School Examination as Annexure-1. The petitioner was enrolled as an advocate on 26.2.95 on the Rolls of the Bar Council of Rajasthan. Her enrolment number as an Advocate is 18312/95 on the rolls of the Bar Council of Rajasthan. (3). That the Rajasthan Public Service Commission, Ajmer (for short the RPSC) issued an advertisement inviting applications for appointment on the post of Munsif & Judicial Magistrate on 17.5.2001. According to the advertisement there were following vacant posts which are required to be fill in by the RPSC by examination and interview: Total Noof Posts116 General posts Reserved Posts S.C. S.T. O.B.C. M F M F M F M F 48 11 15 4 11 3 19 5 (4). The advertisement provides for qualification and age limits. According to the qualification any candidate who has obtained a recognised degree of law and has practiced as an advocate for three years to qualify to apply for the post of Munsif and Judicial Magistrate. With regard to the age it was provided that the candidate must have not attained the age of 35 years on 1.1.2002. According to the qualification any candidate who has obtained a recognised degree of law and has practiced as an advocate for three years to qualify to apply for the post of Munsif and Judicial Magistrate. With regard to the age it was provided that the candidate must have not attained the age of 35 years on 1.1.2002. It is provided that there will be age relaxation of five years for the candidates belonging to SC/ST. There were also certain relaxation of age for certain categories of candidates. A photo copy of the advertisement dated 17.5.2001 has also been submitted and marked as Annexure-3. This advertisement has been issued under the Rajasthan Judicial Service Rules, 1955 (hereinafter referred to as `the RJS Rules). Rule 10 of the RJS Rules, which provides for age, reads as under:- ``10. Age:- A candidate for recruitment to the service must not have attained the age of 35 years on the first day of January next following the date of commencement of examination by the commission for recruitment to the Service: Provided: (i) that barring the first examination to be held under the provisions of these rules, if a candidate would have been entitled in respect of his age to appear at an examination in any year in which no such examination was held, he shall be deemed to be entitled in respect of his age to appear at the next following examination; (ii) provided further that for the examination to be held under the provisions of these Rules in the year 1962, the upper age-limit shall be 35 years; (iii) that in respect of the first examination to be held under the provisions of these rules the upper age-limit shall be 32 years; and (iv) that the upper age limit for a candidate of a Scheduled Caste or of a Scheduled Tribe shall be deemed to have been raised by five years; (v) that the upper age-limit for the reservists, namely the defence service personnel transferred to the reserve, shall be 50 years; (vi) that the upper age-limit for the political sufferer shall be 40 years till the 31.12.1964 Explanation: The expression `political sufferer for the purpose of this rule shall have the meaning assigned to it under clause (iii) of Rule 2 of the Rajasthan Political Sufferer Aid Rules, 1959, published in part IV (c) of Rajasthan Gazetted, dated 18 June, 1959. (vii) That the upper age-limit mentioned above shall be relaxable by a period equal to the service rendered in the N.C.C. in the case of cadet Instructors and if the resultant age does not exceed the prescribed maximum age limit by more than three years, they shall be deemed to be within the prescribed age- limit; (viii) Provided for that any candidate who is released Commissioned Officer as defined in cl. (e) of sub-rule (1) of Rule 3 of the Rajasthan Civil Service (Recruitment of Released Emergency Commissioned and Short Service Commissioned Officers) Rules, 1968, and who had not attained the age of 32 years when he was recruited in the Armed Force of the Union shall be eligible to appear in the examination to be held under the provisions of these rules in the years 1970, 1971 and 1972 if he fulfills the qualifications laid down in Rule 11. (ix) Notwithstanding anything contained contrary in these Rules, in the case of persons serving in connection with the affairs of the State in substantive capacity, the upper age limit shall be 40 years. (5). No relaxation of age has been given to the women candidates particularly widow and divorced ladies. According to the petitioner, although she fulfills the educational qualification but she will be crossing 35 years of age by 1.1.2002, as such she is not eligible to apply for the post. Since the petitioner has submitted her application form in the prescribed form to appear in the RJS Competetive Examination 2001, but in view of the age limit of 35 years, the petitioner states that the concerned authority will not allow her the appear in the examination. (6). Aggrieved by the age limit mentioned in the advertisement and Rule 10 of the Rules, the petitioner through her advocate sent a notice on 16.7.2001 to the respondents to grant relaxation of age to the petitioner for recruitment in Rajasthan Judicial Services. The notice was duly received by the respondents but no action has been taken on the notice of the petitioner so far. According to the petitioner, the action of the respondents in not providing age relaxation for women particularly divorcee and widow in Judicial Services is highly arbitrary and discriminatory. The petitioner, therefore, filed the above writ petition with the reliefs prayed for and extracted above. (7). We have heard, Shri A.K. Bhandari, Sr. According to the petitioner, the action of the respondents in not providing age relaxation for women particularly divorcee and widow in Judicial Services is highly arbitrary and discriminatory. The petitioner, therefore, filed the above writ petition with the reliefs prayed for and extracted above. (7). We have heard, Shri A.K. Bhandari, Sr. Advocate and ably assisted by Shri M.M. Ranjan, Advocate. Our attention was drawn to Rule 10 (Age) and Rule 29 (Leave, Allowances and Pension etc.). Our attention was also invited to Rule 8 of the Rajasthan Service Rules, which runs as under:- ``8. Age on first appointment:- (1) Unless otherwise provided in the rules or the orders of the Government governing recruitment to any post or class of posts the minimum and the maximum age for entry into Government service shall be 16(+33 years) respectively. Exceptions 1: Minors or persons who have not attained the age of 18 years should not be appointed to posts for which security is required; 2. Unless otherwise provided in the rules governing recruitment to particular post/Service, the upper age limit in case of women candidates for entry into Government service shall be+40 years. (8). Shri A.K. Bhandari at the time of hearing raised and argued the following points for consideration:- ``(a) the action of the respondents in not providing age relaxation of five years for women particularly divorcee and widow in Judicial Services is violative of Articles 14 and 16 of the Constitution. While the women are entitled to age relaxation of five years in all the services of Rajasthan, there is no reason whatsoever why such relaxation could not be given to similarly situated women candidates applying for Judicial Services; (b) that such age relaxation has been provided under the Rajasthan Administrative Service Rules, 1954, Rajasthan Police Service Rules, Rajasthan Medical Service (Collegiate Branch) Rules, Rajasthan Medical & Health Service Rules, Rajasthan Legal State and Subordinate Service Rules, Rajasthan Vidhi Rachna Service Rules, Rajasthan Education Service (Collegiate Branch) Rules, Rajasthan Tehsildar Service Rules and also in Subordinate Service Rules. The women candidates applying for Rajasthan Judicial Services are being unfavourably treated qua the similarly situated women candidates; (c) that Article 16(1) of the Constitution of India contemplates that there shall be equality of opportunity for all citizens in matter relating to employment or appointment to any office under the State. The women candidates applying for Rajasthan Judicial Services are being unfavourably treated qua the similarly situated women candidates; (c) that Article 16(1) of the Constitution of India contemplates that there shall be equality of opportunity for all citizens in matter relating to employment or appointment to any office under the State. It may further to be noted that women candidates applying for service under the Rajasthan Judicial Services, can not be considered inferior to the candidates serving under Rajasthan Administrative Services. Therefore, the Rajasthan Judicial Service Rules in way imposes an arbitrary ban upon the appointment of women candidates beyond the age of 35 years; (d) that Rule 8 of the RSR provides for age on 1st appointment. The relevant rule has already been extracted above. However, the RJS Rules do not provide any age limit for women candidates for entry into Judicial Service; (e) that Rule 29 of the RJS Rules, reads as follows:- ``29. Leave, Allowances, Pensions etc. Except as otherwise provided in these rules, the pay, allowances, pensions, leave and other conditions of service of the members of the Services shall be regulated by: 1. The Rajasthan Travelling Allowance Rules, 1949. 2. The Rajasthan Civil Services (Unification of Pay Scales) Rules, 1950; 3. The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1951; 4. The Rajasthan Service Rules, 1951, and 5. Any other rules made under the proviso to Article 309 of the Constitution and for the time being in force. By virtue of Rule 29 of RJS Rules, the Rajasthan Service Rules 1951 have been made applicable to the Judicial Services. Consequently, by virtue of Rule 8 of RSR, the petitioner is entitled to apply for recruitment in Rajasthan Judicial Service, even if the petitioner has crossed 35 years of age as on 1.1.2002. (f) that under Article 15(2) of the Constitution of India, the State can make special provisions for women; (g) that under Article 38 of the Constitution of India, it is the duty of the State to secure a social order for promotion of welfare of the people. (f) that under Article 15(2) of the Constitution of India, the State can make special provisions for women; (g) that under Article 38 of the Constitution of India, it is the duty of the State to secure a social order for promotion of welfare of the people. Under Article 39 the State shall direct its policy towards securing that the citizen men and women equally have the right to an adequate means of livelihood and under Article 46 it is the duty of the State to promote weaker section of the people as the women have always been treated as weaker section of the society; (h) that the RJS Rules and advertisement provide that all those candidates who are substantively appointed in the State Services will have an age relaxation up to 40 years. Thus it is argued by Shri Bhandari that for a woman Govt. Servant holding a substantive post the age relaxation will be up to 40 years while a woman candidate who is not in service, the age limit will be only 35 years. This is on the face of it is discriminatory; (i) while there is relaxation of age for women candidates belonging to SC/ST there is no such relaxation for women in general. All the women belonged to weaker section of the society irrespective of any caste or creed and all must be treated alike. There should be no discrimination between one woman and another in the matter of public employment. (9). Concluding his argument, Shri Bhandari submits that the appointing authority as well as the RPSC have created two classes in respect of benefit of maximum age. The women candidates of SC/ST and OBC form a single class as they all have been given benefit of reservation. The discrimination which has been made while giving benefit of age to the candidates of SC/ST qua the women candidates is without any reasonable justification and that the discrimination which has been created by the respondents is violative of Articles 14 and 16 of the Constitution as there cannot be two yardsticks for adjudging the eligibility of the candidates who form the same group and in this case, the women candidates. Mr. Bhandari made further submission that the real purpose of giving benefit to the women candidates is taken away by not extending benefit of age while calculating the maximum age. Mr. Bhandari made further submission that the real purpose of giving benefit to the women candidates is taken away by not extending benefit of age while calculating the maximum age. Such women candidates suffer from several handicaps qua the general candidates. The appointing authority considering all these aspects of socially economic backward classes, decided to uplift the women candidates. The outstanding of such candidates at the threshold is writ large in the instant case where they are not given benefit in age relaxation. The real purpose of reservation is taken away by the respondents at the initial stage while prescribing the norms of eligibility in respect of age. Winding up his arguments arguments, Shri Bhandari in his concluding remarks submitted that while there is age relaxation of five years for women candidates in various Rajasthan Service Rules, there is no such relaxation for the women candidates applying for the Rajasthan Judicial Services, which according to him is, highly unreasonable and arbitrary. (10). At the time of hearing, the learned Sr. Counsel drew our attention to the judgment of the Supreme Court in the case of All India Judges Association and Others vs. Union of India and Others (1), and in particular paragraph 9 and 26. (11). We have given our thoughtful consideration on the issues/contentions raised by Shri A.K. Bhandari, Senior counsel. (12). We have already extracted the prayer in the writ petition. The main prayer and the present case is squarely covered by the decision passed on 12.9.2001 by the Division Bench of this Court comprising of the Chief Justice and Mr. Justice A.K. Parihar. The said writ petition filed by Ku. Archana Agrawal (2). The Division Bench held that this Court in its jurisdiction under Art. 226 cannot issue a direction contrary to Rule 10 of the Rajasthan Judicial Service Rules, 1955, which deals with the prescribing of the age limit of 35 years for a candidate except SC/ST, defence personnel and political sufferers, nor can issue a writ of mandamus to violate the law or to act in violation of law. It is useful to reproduce the relevant paragraphs as under: ``It is settled proposition of law that no direction contrary to the rules can ever be issued. Therefore, in our opinion, the petitioner is not entitled for any relief of age relaxation. It is useful to reproduce the relevant paragraphs as under: ``It is settled proposition of law that no direction contrary to the rules can ever be issued. Therefore, in our opinion, the petitioner is not entitled for any relief of age relaxation. Fixing the age limit classification/categorisation/relaxation is primarily for the Legislature or for the statutory authority charges with the duty of framing the terms and conditions of service. If looked at from the point of the authority making it, there is no discrimination and the classification is found to rest on a reasonable basis and, therefore, the rule as it stands, has to be upheld. The Supreme Court in many cases, has held that the Court cannot issue a mandamus to violate the law or to act in viola- tion of the law. The Court cannot perform the legislative functions and that the Court has no power to act contrary to the existing law. In the instant case, the applications are entertained subject to the age as per rule 10 and other provisions of the rules. By judicial order, the said age limit fixed cannot be nullified. We are, therefore, not inclined to issue any direction or mandamus to the authorities for disobeying the law. The power conferred by Art. 226/227 of the Constitution is designed to enforce the rule of law and to ensure that every authority and organs of the State act in accordance with law. It cannot be invoked for directing the authorities who are creatures of the Statutes, cannot be directed to ignore or act contrary to Rule-10. (13). In the instant case, Shri Bhandari, senior counsel has raised an additional contention regarding the applicability of Rule 8 of the Rajasthan Service Rules, 19951 (hereinafter to be referred to as the RSR, 1951), which has been quoted above, in the matter of appointment of Munsiff Magistrate, lowest post of Rajasthan Judicial Service. We deem it proper to examine the issue afresh and with an open mind. (14). Rule 10 and Rule 29 of the Rules 1955 have also been extracted above. (15). A bare perusal of Rule 8 of RSR would show that the said rule is of general nature and has been made applicable only in cases where the service rules do not prescribe the age limit. (14). Rule 10 and Rule 29 of the Rules 1955 have also been extracted above. (15). A bare perusal of Rule 8 of RSR would show that the said rule is of general nature and has been made applicable only in cases where the service rules do not prescribe the age limit. A further perusal of Rule 29 of the Rules of 1955 would reveal that the High Court has adopted the other rules mentioned therein only obligatory, except otherwise provided in these rules. Since rule 10 of the Rules of 1955 specifically provides maximum age limit for the appointment to the RJS and there is no relaxation of age limit except SC/ST, political sufferers, defence personnel. In other words, no age relaxation has been granted to women candidates and they have been treated at par with the general candidates in the matter of age limit. Therefore, we are of the opinion that Rule 8 of RSR is not applicable in the Rajasthan Judicial Service Rules, 1955 and Rule 10 will alone hold the field. Even as per the interpretation of the statute, special law will prevail and over-ride the general law. Shri A.K. Bhandari strongly contended that the Honble Supreme Court in the case of All India Judges Association and others vs. Union of India (supra), issued direction to the State authorities for amendment of Rules in Para 20. He also drew our attention to the paragraphs 7,8 and 26 of the said judgment in support of the contention that the High Court can issue direction for amendment of the Rules. Relevant paragraphs 7,8,20 and 26 are reproduced hereunder: 7. It is not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there. We cannot however, help observing that the failure to realise the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in the sense of `employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. The judicial service is not service in the sense of `employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which comes out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on a par with the members of the Judiciary, either constitutionally or functionally. 8. This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reasons. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the Judges in want of essential accouterments and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself. 20. It has, however, become imperative, in this connection, to take notice of the fact that the qualifications prescribed and the procedure adopted for recruitment of the Judges at the lowest rung are to uniform in all the States. In view of the uniformity in the hierarchy and designations as well as the service conditions that we have suggested, it is necessary that all the States should prescribe uniform qualifications and adopt uniform procedure in recruiting the judicial officers at the lowest rung in the hierarchy. In most of the States, the minimum qualifications and for being eligible to the post of the Civil Judge-cum-Magistrate First Class/Magistrate First Class/Munsiff Magistrate is minimum three years practice as a lawyer in addition to the degree in law. In some States, however, the requirement of practice is altogether dispensed with and judicial officers are recruited with only a degree in law to their credit. The recruitment of law graduates as judicial officers without any training or background of lawyering has not proved to be a successful experiment. Considering the fact that from the first day of his assuming office, the Judge has to decide, among others, questions of life, liberty, property and reputation of the litigants, to induct graduates fresh from the Universities to occupy seats of such vital powers is neither prudent nor desirable. Neither knowledge derived from books nor pre-service training can be an adequate substitute for the first-hand experience of the working of the Court-system and the administration of justice begotten through legal practice. The practice involves much more than mere advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a Judge is likely to remain incomplete. The practice involves much more than mere advocacy. A lawyer has to interact with several components of the administration of justice. Unless the judicial officer is familiar with the working of the said components, his education and equipment as a Judge is likely to remain incomplete. The experience as a lawyer is, therefore, essential to enable the Judge to discharge his duties and functions efficiently and with confidence and circumspection. Many States have hence prescribed a minimum of three years practice as a lawyer as an essential qualification for appointment as a judicial officer at the lowest rung. It is, hence, necessary that all the States prescribe the said minimum practice as a lawyer as a necessary qualification for recruitment to the lowest rung in the judiciary. In this connection, it may be pointed out that under Article 233 (2) of the Constitution, no person is eligible to be appointed a District Judge unless he has been an Advocate or a pleader for not less than seven years while Articles 217(2) (b) and 124 (3)(b) require at least ten years practice as an Advocate of a High Court for the appointment of a person to the posts of the Judge of the High Court and the Judge of the Supreme Court, respectively. We, therefore, direct that all States shall take immediate steps to prescribe three years practice as a lawyer as one of the essential qualifications for recruitment as the judicial officer at the lowest rung. 26. This argument misses the point that the longer period required for acquiring the necessary academic qualifications is only one of the grounds on which the enhancement of the superannuation age is directed. Even after the acquisition of the relevant academic qualifications, a minimum practice at the Bar is in most of the States, a pre-requisite for recruitment to the post of the Judge even at the lowest level. There is no such waiting period for the candidates of the other services after the acquisition of the academic qualifications. This, the judicial officer enters the service at a relatively higher age than the member of the other services. Secondly, as observed by the Law Commission in its Fourteenth Report, the judicial service stands by itself in the matter of age of retirement by reason of the great importance of a long experience and a mature mind in the judicial office. Secondly, as observed by the Law Commission in its Fourteenth Report, the judicial service stands by itself in the matter of age of retirement by reason of the great importance of a long experience and a mature mind in the judicial office. The recognition of such importance has led most countries to prescribe a much higher age for the retirement of judicial personnel as compared with that of the personnel in other services. In England, the judicial service is governed by special rules both in regard to the emoluments and the age of retirement. While the civil servants retire at the age of 60 years, the Country Court Judges and Metropolitan Magistrates retire at 72. In our country also the tenure and other terms and conditions of service of the Supreme Court and the High Court Judges stand out from those relating to the administrative service. Lastly, we cannot shut our eyes to the reality that on account of the sizeable earnings at the Bar, many times out of proportion to the skill and the labour put in, the competent lawyers are reluctant to accept the judicial posts. There is thus a dearth of proper talent available to man the judicial service. It is, therefore, for the health of the administration of justice that attractive service conditions including a higher retirement age, is prescribed for the members of the judiciary. For the same reason, it is necessary that whatever trained talent is available is utilised for as long a period as is feasible. (16). We have carefully perused the above judgment. We are conscious of the fact that the Honble Supreme Court was exercising powers under Art. 32 of the Constitution of India read with Art. 142 of the Constitution of India while issuing the said directions in order to do complete justice to the parties, but while exercising powers under Art. 226 of the Constitution of India, the writ court can enforce the law or declare the same ultra vires if the same is violative of fundamental rights or the authority concerned likes the competence to enact or make the same, but cannot issue mandamus or directions to the Legislative Authorities to amend the Law. (17). (17). In State of Haryana vs. Naresh Kumar Bali (3), the Supreme Court has clarified the distinction between the powers under Art. 142 of the Constitution of India to Honble Supreme Court and under Art. 226 of the Constitution of India to the High Court and in para 6 of the judgment held as under: ``16. With regard to appointment on compassionate ground we have set out the law in Life Insurance Corpn. of India vs. Asha Ramchandra Ambekar. The same principle will clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. it cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasized, is directed against the decision-making process and not against the decision itself; and it is not part of the courts duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can be of no guidance on the scope of Article 226. For these reasons we set aside the judgment under appeal and remit the matter to the High Court for a fresh consideration in the light of what we have indicated above. Accordingly, the appeal is allowed. No cots. (18). The extra-ordinary jurisdiction of the Supreme Court under Article 142 (1) can be of no guidance on the scope of Article 226 of the Constitution of India. Art. 142(1) empowers the Supreme Court to pass any order which is necessary for doing complete justice in any matter pending before it. But, in the exercise of powers of judicial review under Art. 226, the High Court can correct the decision making process but cannot support the decision itself like a Court of appeal. (19). Mr. Bhandari, at the time of hearing has also contended that in other State Service Rules women candidates have been granted age relaxation of five years by way of amendment. (19). Mr. Bhandari, at the time of hearing has also contended that in other State Service Rules women candidates have been granted age relaxation of five years by way of amendment. We are of the firm opinion that in the matter of judicial service, the State has no independent authority to make law and consultation with the High Court is mandatory. So amendment in other services are not relevant. In case of other Service Rules, they have been framed under Art. 309 of the Constitution of India by the Governor while exercising his independent powers. Therefore, the said rules stand on different footing. The Honble Supreme Court also in the All India Judges case (supra) has also held that the Judges are not employees and they cannot be put at par with the members of the other services. Hence, the members of the Judicial service are two separate classes and the same cannot be equated. (20). All India Station Masters and Assistant Station Masters Association, Delhi and Others vs. General Manager, Central Railway and Others (4), the Constitution Bench of the Supreme Court has even held that equality cannot be claimed by the employees under the same employer if they form two separate classes. Para 8 is relevant and the same is extracted herein below: ``It is clear that as between the members of the same class the question whether conditions of service are the same or not may well arise. If they are not, the question of denial of equal opportunity will require serious consideration in such cases. Does the concept of equal opportunity in matters of employment apply, however, to variations in provisions as between members of different classes of employees under the State ? In our opinion, the answer must be in the negative. The concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicated. Equality of opportunity in matters of employment can be predicated only as between persons, who are either seeking the same employment, or have obtained the same employment. It will for example, plainly make no sense to say that because for employment as Professors of Colleges, a higher university degree is required than for employment as teachers of schools equality of opportunity is being denied. It will for example, plainly make no sense to say that because for employment as Professors of Colleges, a higher university degree is required than for employment as teachers of schools equality of opportunity is being denied. Similarly, it is meaningless to say that unless persons who have obtained employment as school teachers, have the same chances of promotion as persons who have obtained employment as teachers in Colleges, equality of opportunity is denied. There is, in our opinion, no escape from the conclusion that equality of opportunity in matters of promotion, must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes. (21). While going through the case and law on the subject, we noticed that Rule 32 of the Rajasthan Judicial Service Rules 1995 deals with relaxation. This point, however, has not been argued by the learned senior counsel, but we deem it proper to deal with the scope and ambit of Rule 32 of the RJS Rules. Rule 32 reads as follows:- ``32. Exceptions : (1) Nothing in these rules shall be construed to limit or abridge the power of the Rajpramukh to deal, in consultation with the Court, with the case of any person governed by these rules in such manner as may appear to him to be just and equitable: Provided that, where any of the foregoing rules is applicable to the case any person, the case shall not be dealt with in a manner less favourable to him than that provided by that rule. (2) Where it appears necessary to do so, the Governor may, on the recommendation of the Court make any temporary appointment to the Service by deputation or otherwise for amongst the R.A.S. Officers in relaxation of the rules. Substituted for 32 (2) vide notification No. F. 18 (I) (33) Jud/63 dated 12.10.66, published in Raj. Gazette. Pt. C. dt. 6.4.1967: 32.(2). ``When in his opinion it appears necessary to do so, the Rajpramukh may in consultation with the Court make any appointment to the Service in relaxation of these rules and in case of any appointments which is not in strict accordance with the rules the Rajpramukh shall be deemed to have made the appointment in relaxation of the rules. (22). Under the said rule, the Governor can grant relaxation in age after consulting the High Court. (22). Under the said rule, the Governor can grant relaxation in age after consulting the High Court. It is necessary for the Governor to consult the High Court before passing order of relaxation. Consultation is required under Rule 32 which is part of the decision making process to be necessarily made before taking any decision. (23). A similar case arose for consideration by a learned Single Judge of this Court in the case of Sudarshan Kumar Sharma vs. State of Rajasthan and Another (5). The writ petition was filed on behalf of the candidate seeking a direction to be issued to the State of Rajasthan and another to appoint him on the post of Munsiff and Judicial Magistrate w.e.f. the date persons ranking below in the merit list of selected candidates forwarded by the RPSC were appointed and he be assigned due seniority. In that case, candidature of the candidate had been cancelled since he was over age on 1.1.1993. The said letter was challenged by the petitioner by way of filing a writ petition which was registered as D.B. Civil Writ Petition No. 75/93, wherein it was contended that Rule 10 of the Rajasthan Judicial Service Rules, 1955 in so far as it fixes first January of the year succeeding the year in which the examination is held, as the relevant date for computing the upper age limit to be ultravires, and as such, the order dt. 23.12.1992 be quashed. The Division Bench while issuing notice ordered that the R.P.S.C. may interview the petitioner on the last date of the holding of the interviews or on any other date which is convenient to it, the result will, however, not be declared. In compliance of the order the petitioner was interviewed. In the meantime, the Government vide order dated 23.2.1993 informed the Service Commission that for 1992 selection, the upper age limit had been relaxed in respect of the one Shri Harisingh Fojdar and other similarly situated six candidates. The Division Bench decided the writ petition on 29.3.1993 observing that in view of the fact that relief has already been given to the petitioner by the State Government, the writ petition is not pressed. It was disposed of. Consequently, the R.P.S.C. was directed to declare the result of the petitioner as early as possible. The Division Bench decided the writ petition on 29.3.1993 observing that in view of the fact that relief has already been given to the petitioner by the State Government, the writ petition is not pressed. It was disposed of. Consequently, the R.P.S.C. was directed to declare the result of the petitioner as early as possible. The State Government issued appointment order dated, 8.9.1993 whereby 56 candidates were granted appointment on the post of Munsif and Judicial Magistrate. It was mentioned in that order that so far as the appointment of Shri Sudarshan Kumar Sharma, the petitioner in Writ Petition (supra), is concerned, the concurrence from the High Court has not been obtained, and as such, they are not being given appointment. On having come to know this, the petitioner made a representation and also served a notice for demand of justice. Being aggrieved with the action of the respondents of not giving him appointment on the post of Munsif and Judicial Magistrate, the petitioner filed the above writ petition. (24). The respondent No. 1 in its reply has stated that the Government granted relaxation in the maximum age limit vide order dated 23.2.93 only for the RJS Examination, 1992, for six persons including the petitioner and the High Court declined to concur or approve the relaxation granted by the Government since the age limit could only be relaxed in consultation with the High Court in view of Rule 32 of the Rajasthan Judicial Service Rules, 1955. It was contended on behalf of respondent No. 2 before the learned Single Judge that the order of the Governor is illegal, in as much as, the Governor is not empowered to relax the maximum age limit and that it can only be done in consultation with the High Court and consultation is a part of decision making process. It was also urged that since the relaxation in maximum age limit was granted by the Governor without consulting the High Court, the petitioner cannot take any advantage since Rule 32 of the Rules of 1955 specially provides for consultation with the High Court. (25). The learned Single Judge held that the order of the Governor dated 28.2.93 was not passed according to law, and, therefore, the petitioner cannot be permitted to avail benefits flowing out of it although he may be meritorious and had no control over the authority. (25). The learned Single Judge held that the order of the Governor dated 28.2.93 was not passed according to law, and, therefore, the petitioner cannot be permitted to avail benefits flowing out of it although he may be meritorious and had no control over the authority. In the above circumstances, the learned Judge held that in the absence of any consultation, it cannot be said that the petitioner has been illegally denied appointment to the Rajasthan Judicial Service. It is, thus, clear from the above Rule 32 that the age limit can only be relaxed in consultation with the High Court in view of rule 32 of the Rajasthan Judicial Service Rules, 1955. The provisions are mandatory and make obligatory for the Government to consult the High Court and obtain it before appointing a person under the Rules. (26). Rajasthan Legal Service Association filed a S.L.P. before Honble Supreme Court - Writ Petition (Civil) No. 662/1998, to issue a mandamus to quash and set aside the amended rule of the Rajasthan Judicial Service Rules, 1955, in so far as a condition of three years practice as a Lawyer was made applicable to the staff of the Rajasthan Legal Service. Consequent upon the judgment of the Supreme Court in All India Judges Association and Others vs. Union of India (supra), the State of Rajasthan amended the Rajasthan Judicial Service Rules by Rajasthan Judicial Service (Amendment) Rules, 1994 and an additional condition was incorporated in the rules in terms of the direction given in para 20 of the Second Judges case. The direction was that all States shall take immediate steps to prescribe three years practice as Lawyer as one of the essential qualification for recruitment as the Judicial Officer at the lowest rung. The first National Judicial Pay Commission which was set up as per the direction given in Writ Petition No. 1092/89 on 13.11.91 submitted its report. One of the issues considered in the report also pertains to recruitment to the Judicial Service at all stages and prescription of qualifications for recruitment as a Judicial Officer at the lowest rung. (27). It was submitted before the Honble Supreme Court that the direction given in Para 20 in the Second Judges case was being interpreted by the State as a restraint on its power to legislate or make amendment to Rajasthan Judicial Service Rules relating to qualifications for recruitment. (27). It was submitted before the Honble Supreme Court that the direction given in Para 20 in the Second Judges case was being interpreted by the State as a restraint on its power to legislate or make amendment to Rajasthan Judicial Service Rules relating to qualifications for recruitment. To allay the apprehension expressed by the petitioner before the Supreme Court, the Supreme Court clarified that the observations made in Paragrah 20 of the Second Judges Case were not meant to operate as restraint on the power of the State to legislate in consultation with the High Court and amend or frame rules pertaining to recruitment to judicial service including prescription of qualifications therefor. The Supreme Court has further observed that while framing or amending such rules, the State as well as the High Court shall keep in mind various pronouncements of the Supreme Court as also the suggestions made by the First National Judicial Pay Commission in that behalf. The Supreme Court in that case, filed by the members of the Rajasthan Legal Service, reserved liberty to the said Association to question the validity or constitutionality of the amendment as and when such an amendment is carried out or new rule is framed. (28). Consequently, in the light of Rule 32 of the RJS Rules, it is open to the petitioner to invoke the said rule in the matter of age relaxation and proceed further in accordance with law. We make this direction taking into consideration the status of the petitioner as a woman and divorcee. She may apply to His Excellency the Governor under Rule 32 for relaxation of age after declaration of her passing the written examination. (29). In the result, the present writ petition is disposed of in the light of our judgment dated, 12.09.2001 in D.B. Civil Writ Petition No. 4247/2001 and in view of the further discussion in regard to Rule 32 of the Rajasthan Service Rules made supra.