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J&K High Court · body

2010 DIGILAW 628 (JK)

Manohar Lal v. State

2010-12-16

Hasnain Massodi

body2010
1. The petitioner responded to Notification No. PSC/Ex-2001/64 dated 04.12.2001 issued by Jammu and Kashmir Public Service Commission--respondent No.3 herein for selection of Munsiffs. The application, however, was not entertained by respondent No. 2 as the petitioner on the cut off date i.e. 01.01.2001 had crossed the age of 35 years and was thus ineligible for the advertised post. The petitioner approached the respondent No. 1, for relaxation of upper age limit so as to enable the petitioner to participate in the selection process. The respondent No. 1 vide LD (A) 2001/191 dated 09.04.2003 rejected the petitioner's prayer for relaxation of upper age limit. The petitioner aggrieved of the aforementioned order has filed instant writ petition. The petitioner, on the strength of averments made in the petition prays for following relief:- (a) To quash and set aside, by issuance of a writ, order or direction in the nature of certiorari, communication/order impugned in the writ petition dated 9.4.2003. (b) The respondents be commanded and directed to grant relaxation in the age limit of the petitioner on the same analogy, the case of such other persons have been considered from time to time including the case of Mohammad Altaf Mohand, by the issuance of a writ , order or direction, in the nature of mandamus. (c) To command and direct the respondents to consider the candidature of the petitioner as per the full court meeting resolution of the Hon'ble Court of J&K dated 22 to 26th February 1982 by the issuance of a writ, order or direction in the nature of mandamus. (d) To command and direct the respondents to consider the case of the petitioner in the Scheduled Caste Category for upper age limit to 38 years as per Recruitment Rules of the State Government (CSR Rules 37 Clause 3) by the issuance of a writ, order or direction, in the nature of mandamus. (e) To command and direct the respondents to consider the case of the petitioner for appointment as Munsiff on the basis of merit obtained by him in the Competitive Examination as per the relaxation of the age already granted to him by His Excellency the Governor, J&K State, vide his communication dated 13.8.2001, by the issuance of a writ, order or direction, in the nature of mandamus. (f) To quash and set aside the appointment of respondent No. 4 by the issuance of a writ, order or direction, in the nature of certiorari. (g) And/ or to pass any other writ, order or direction, which this Hon'ble Court may deems fit and proper in the present set of circumstances. 2. The writ petition rests on the following grounds:- 1. That the petitioner on the date of issuance of Notification No. PSC/Ex-2001/64 dated 04.12.2001 was working as adhoc Munsiff and upper age limit in favour of the petitioner was earlier relaxed by the Competent Authority enabling the petitioner to join as Munsiff on adhoc basis at Munsiff Court Gool Gulab Gadh, despite having crossed the age of 35 years 8 months and 7 days before the cut of date i.e. 01.01.2001; that the respondent No. 1 having earlier relaxed the upper age limit in favour of the petitioner at the time of his appointment as adhoc Munsiff, was not left with any reason to decline such a prayer when selection process for appointment of Munsiff's on regular basis was set into motion by the respondent No. 3. 2. That under Article 37(3) Jammu and Kashmir Civil Services Regulations 1956, upper age limit for members of Schedule Caste and Schedule Tribe candidates is fixed as 38 years and there is no reason not to apply Rule 37 (3) supra to recruitment of Munsiffs under Jammu and Kashmir Civil Services (Judicial) Recruitment Rules 1967, notwithstanding said Rules not making a provision for enhanced upper age limit in favour of Scheduled Caste and Scheduled Tribe candidates. 3. 3. That the respondent No. 1, is under Constitutional obligation in terms of Articles 15 (4) and 29 (2) to make special provisions for advancement of socially and economically backward classes and respondent No. 1, in furtherance of Constitutional mandate has set a part/ a particular percentage in Government--Gazetted and Non-Gazetted Services for the members of Schedule Caste and Schedule Tribe Category and as an additional benefit to the candidates of said categories raised upper age limit so as to increase the opportunities for candidates of said communities to make it to the Government service; that the respondent No. 1, cannot carve out an exception in case of Jammu and Kashmir Civil Services (Judicial) Recruitment Rules 1967; that the refusal on part of the respondents not to raise upper age limit in case of members of Schedule Caste and Schedule Tribe community as regards Jammu and Kashmir Civil Services Rules, is discriminatory in character and violative of Article 14 Constitution of India. 4. That the respondents accorded post-facto sanction to relaxation of upper age limit in favour of one Mohammad Altaf Mohand Son of Mohammad Sultan Mohand Resident of Trichal Pulwama, enabling him to appear in Jammu and Kashmir Civil Servicers (Judicial) Examination and the petitioner being similarly situated, the respondents by refusing similar treatment to the petitioner have violated the mandate of Article 14 and 16 Constitution of India. 5. That the petitioner, allowed to sit in the KCS Civil Services (Judicial) Examination 2003 under order of the High Court in SWP No. 1478/2002, filed by the petitioner, has performed exceptionally well in the examination and the petitioner's case ought to have been forwarded by respondent No. 3 to respondent No. 1 for relaxation in upper age limit as has been done in identical circumstances in case of other Gazetted Services by the respondent No. 3. 6. That the Full Court of Jammu and Kashmir High Court in its Resolution dated 26th February 1982 has resolved to make general Recruitment Rules applicable to other reserved categories also applicable to the Jammu and Kashmir Civil Services (Judicial) Recruitment Rules 1967 and in terms of Full Court resolution the upper age limit of the candidates belong to Schedule Tribe and Schedule Caste Category is to be treated as 38 years instead of 35 years prescribed under J&K Civil Service Regulations. 3. 3. Respondent No. 2 in his reply has resisted the writ petition on the grounds that none of the fundamental, legal or Statutory rights of the petitioner have been violated and that the writ petition was not maintainable. 4. The respondent No. 3 in its reply has opposed the writ petition inter alia on the grounds that the respondent No. 3 while making the selection is required to adhere to the Rules and Regulations framed by Competent Authority and that the Notification No. PSC/Ex-2001/64 dated 04.12.2001 whereby applications for recruitment to the Jammu and Kashmir Civil Services (Judicial) were invited has been issued in strict accordance with Jammu and Kashmir Civil Services (Judicial) Recruitment Rules 1967. It is averred that under Rules a candidate to be eligible for participating in the selection process should not have crossed 35 years age as on Ist. January 2001, and that the petitioner having crossed the upper age limit on the relevant date was not eligible to sit in the examination. It is averred that though the application of the petitioner and similarly situated candidates were received by the respondent No. 3 at the instance of respondent No. 1 subject to relaxation in their upper age limit, the petitioners participation in the examination was rendered inconsequential in view of Government communication No. LD/A/2001/191 dated 09.04.2003 whereby the petitioner's prayer for relaxation of upper age limit was declined. It is insisted that the petitioner being ineligible to be appointed as Munsiff under Jammu and Kashmir Civil Services (Judicial) Recruitment Rules 1967, the petitioner cannot place reliance on Government No. 1500-GAD of 2000 dated 21.12.2000 for the Recruitment Rules governing other Gazetted Government Service in the State. 5. It is pleaded, that the case for relaxation of upper age limit in favour of the petitioner was placed before the Competent Authority and that the Competent Authority having declined petitioner's prayer, the petitioner is not left with any cause to file the writ petition. It is insisted that relaxation of upper age limit falls exclusively within the discretion of respondent No. 1, and the respondent No. 1, having accorded consideration to the petitioners case for relaxation of upper age limit, it is no more open to the petitioner to question the order, claiming parity with other Gazetted Services in as much as, no right of petitioner has been violated. The petition is also assailed as having become infructuous due to efflux of time and finalisation of the selection process. It is further pleaded that age of recruitment having been prescribed under J&K Civil Services (Judicial) Recruitment Rules 1967, J&K Civil Services Regulations 1956, have no application and can not be relied upon by the petitioner. 6. Heard and considered. 7. The petitioner admittedly had crossed the upper age limit prescribed under J&K Civil Servicers (Judicial) Recruitment Rules 1967 on Ist. January 2001 i.e. the cut of date under Notification No. PSC/Ex-2001/64 dated 04.12.2001. Mere fact that the earlier Competent Authority relaxed the upper age limit in favour of the petitioner and cleared way for petitioner's appointment as adhoc Munsiff, does neither cast any obligation on respondent No. 1 to relax upper age limit when the regular appointment was being made nor vest a right in the petitioner to claim relaxation in upper age limit. It is for the respondent No. 1 to prescribe age of recruitment for a particular service and to fix the upper age limit for a particular category over and above the general category having regard to the extent of representation of such category in the service and other like factors. The court cannot in exercise of writ jurisdiction, direct the respondent no. 1 to prescribe recruitment age for candidates belonging to one category over and above the age limit prescribed for general category candidates. The decision in this regard is to be taken by the social planners who have all necessary inputs available and thus Competent to take a policy decision. This Court can not step into shoes of policy makers and formulate policies on behalf of the respondent No. 1 or its functionaries. If the respondent No. 1 has decided to increase upper age limit for Schedule Tribe and Schedule Caste category in respect of Gazetted Services like J&K Administrative Service, it is for the Authority Competent to make Recruitment Rules in respect of district Judiciary to give a second look to J&K Civil Services (Judicial) Recruitment Rules 1967 and take steps to bring uniformity in recruitment age, if found advisable having regard to all the relevant factors. The petitioner can not claim benefit under Recruitment Rules pertaining to other Gazetted Services when J&K Civil Services (Judicial) Recruitment Rules 1967, expressly prescribe the recruitment age. The petitioner can not claim benefit under Recruitment Rules pertaining to other Gazetted Services when J&K Civil Services (Judicial) Recruitment Rules 1967, expressly prescribe the recruitment age. The Full Court Resolution on which reliance is sought to be placed is of no help to the petitioner as long as such Resolution does not concretize into express rule and get reflected/incorporated in J&K Civil Services (Judicial) Recruitment Rules 1967. 8. The ground urged in the petition that as the respondent No. 1 has accorded post-facto sanction to relaxation in upper age limit in favour of one Mohammad Altaf Mohand Son of Mohammad Sultan Mohand Resident of Trichal Pulwama, the petitioner deserved same treatment and the respondent No. 1, denying the petitioners relaxation in upper age limit has violated the petitioners right under Article 14 Constitution of India, is bereft of any merit. 9. Perusal of the record reveals that the respondents 1 and 2 accorded post-facto sanction to grant of relaxation in upper age limit by one day in favour of Mohammad Altaf for the purposes of entertaining his application and enabling him to appear in Competitive Examination. A ready reference to Government Order No. 338 LD (A) of 2003 dated 5.2.3003 is called for. It reads as under: "Post facto sanction is accorded to the grant of relaxation of upper age limit by one day in favour of Shri Mohamad Altaf Mohand Son of Mohamad Sultan Mohand Resident of Trichal, Pulwama, for purposes of entertaining his application by the Public Service Commission and to appear in the Competitive Examination for recruitment to Jammu and Kashmir Civil Services (Judicial)" 10. It is pertinent to point out that earlier such a relaxation was also granted in favour of petitioner and others vide LD (A) 2001/191 dated 28.01.2002 and their applications entertained by the respondent No. 3 paving way for their participation in the selection process. The post-facto relaxation in upper age limit in favour of Sh. Mohammad Altaf Mohand is restricted to his submitting the application and participating in Competitive Examination and not for appointment of Shri Mohammad Altaf Mohand as Munsiff under J&K Civil Service (Judicial) Recruitment Rules 1967. The petitioner, thus can not, be heard complaining that the petitioner has been subjected to any discriminatory treatment. Mohammad Altaf Mohand is restricted to his submitting the application and participating in Competitive Examination and not for appointment of Shri Mohammad Altaf Mohand as Munsiff under J&K Civil Service (Judicial) Recruitment Rules 1967. The petitioner, thus can not, be heard complaining that the petitioner has been subjected to any discriminatory treatment. Again petitioner's grievance against selection of respondent No. 4 despite his performance in Competitive Examination held pursuant to Notification No. PSC/Ex-2001/64 dated 04.12.2001 is grossly misplaced in as much as the petitioner because of age bar is ineligible for his appointment as Munsiff whereas the respondent No. 4 does not suffer from any such ineligibility. 11. For the reasons discussed above, the writ petition is devoid of any merit and no ground is made out for indulgence. The petition is accordingly dismissed.