Ashwini Vasant Nikam and Another v. The State of Maharashtra Through Secretary and Others

*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 40 WRIT PETITION NO. 6892 OF 2024 ASHWINI VASANT NIKAM AND ANOTHER VERSUS THE STATE OF MAHARASHTRA THROUGH SECRETARY AND OTHERS ... Shri Reddy Avinash M., Advocate for the Petitioners. Shri S.K. Tambe, AGP for Respondent No.1/State. Shri Mukul Kulkarni, Advocate for Respondent Nos.2 and 3. Shri A.B. Kadethankar, Advocate for Respondent No.4. ...

CORAM : RAVINDRA V. GHUGE &

Y. G. KHOBRAGADE, JJ. DATE :- 08th July, 2024 Per Court :-

¶1Both the Petitioners were permitted to appear for the competitive preliminary examination, 2022, for the post of Civil Judge Junior Division and Judicial Magistrate First Class, by the interim orders of this Court.

¶2However, the Government Resolution dated

03.03.2023 and the corrigendum dated 10.03.2023, were interpreted by this Court vide the judgment dated 25.09.2023 in Writ Petition No.11841/2023. It was concluded that similarly 2024:BHC-AUG:14173-DB *2* situated Petitioners were not entitled for any age relaxation since they had already availed of the benefit of the first age relaxation post Covid.

¶3On similar facts, this Court has delivered an order on 19.03.2024 in Writ Petition No.6143/2023 (Gopal Motilal Sharma vs. The State of Maharashtra and others). For clarity, paragraph Nos.3 to 11 read as under:- "03. We have considered the strenuous submissions of the learned Advocates for the respective sides and have gone through the Petition paper book with their assistance.

¶04After the Covid Pandemic, taking into account that there was a national lock-down, exams/recruitment processes were postponed practically in every sector. The Government, therefore, came out with a resolution dated 17.12.2021 concluding that those candidates, who become age barred on account of the Pandemic and the inability of the Appropriate Authority in conducting such recruitment exams, would be granted a relaxation in the age limit.

¶05On an identical footing with relation to the first exam held for appointment to the Maharashtra Judicial Service, after the Pandemic, candidates who became age barred, relied upon Government Resolution dated 17.12.2021 and for seeking benefit of age relaxation, and approached this Court. In the said Writ Petition No. 356 of 2022 filed by Sagar Satish Patil Vs. State of Maharashtra and Others at the Principal Seat, the Division Bench of this Court [Coram : A.S. Chandurkar and Jitendra Jain, JJ] has delivered a judgment on 19.01.2022. Barring the dates, viz. the issuance of the advertisement, the last date for filing of the application forms etc., the facts emerging in the said proceedings at the Principal Seat, are almost identical with the facts before us. The only difference, though that would not advance the case of the Petitioners, is that the examination before us in these Writ Petitions is the second exam held after *3* the Pandemic. The first one was pursuant to the Advertisement No. 270 of 2021 published on 23.12.2021.

¶06The analysis and conclusion of the Division Bench in Sagar Satish Patil (Supra) is from paragraph Nos.9 to 16. We deem it appropriate to refer to the said paragraphs, here under :- "9. Analysis and conclusion :- The Petitioner's primary case appears to be based on Government Resolution 17th December 2021 issued by Respondent No.1 to pray for age relaxation to appear for JMFC exam. In our view, the said Circular is made applicable only to recruitment under Maharashtra Civil Service Rules which contains an enabling provision for age relaxation. Insofar as the recruitment of judicial officers is concerned, the same is governed by the Maharashtra Judicial Service Rules, 2008 which does not have any enabling provision to relax the age. It is settled position that insofar as the judicial recruitment is concerned, the Rules applicable for other Government employees are not applicable, but they are governed only by the Maharashtra Judicial Service Rules, 2008. Therefore, in our view, the reliance placed by the Petitioner on the said Government Resolution to plead age relaxation while seeking recruitment in judicial service is concerned is to be rejected.

¶10Article 234 of the Constitution of India provides that persons other than District Judges shall be appointed by the Governor of the State in accordance with Rules made in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 309 of the Constitution of India provides that subject to the provision of the Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and post in connection with the affairs of the Union or of any State. In our view, the Petitioner is not justified in placing reliance on Article 309 to contend that Government Resolution dated 17th December 2021 ought to be made applicable to judicial services. Article 309 of the Constitution of India expressly provides that same is subject to the provisions of the Constitution. Therefore, it is Article 234 which governs the appointments of persons other than District Judges and same would be in accordance with the Rules framed after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State. Pursuant to Article 234 of the Constitution of India, the Maharashtra Judicial Service Rules, 2008 has been framed. As per Rule 3(A)(c) age on the date of publication of advertisement in the case of advocates *4* with 3 years practice should not be more than 35 years. Proviso to said Rule, relaxes age limit in respect of candidates belonging to the communities recognized as backward by the Government for the purpose of recruitment. The said proviso is not applicable to the Petitioner's case since the Petitioner does not belong to the communities recognized as backward by the Government for the purpose of recruitment. The Petitioner has applied under the open category. In the Maharashtra Judicial Service Rules, 2008 there is no provision or Rule to relax the age for recruitment. Therefore, the Petitioner is not justified in seeking age relaxation since same would be contrary to the Judicial Service Rules. We now propose to deal with the precedents cited before us by the parties.

¶11In the case of State of Bihar & Anr. Vs. Bal Mukund Sah (supra), the issue before the Supreme Court was whether provision of Bihar Reservation of Vacancies in Post and Services Act, 1991 would be applicable to the subordinate judiciary and whether Section 4 of the said Act in its application to the subordinate judiciary would be ultra vires Articles 233 and 234 of the Constitution of India. The Supreme Court answered the said question in paragraph Nos.28 and 29 and observed that Article 309 is of a general nature dealing with regulation of recruitment and condition of service of persons serving in the Union or a State and the said Article is expressly made subject to other provisions of the Constitution. The Supreme Court further observed that recruitment and appointment to the post of Presiding Officers of the Courts subordinates to the High Courts would be governed only by Articles 233 and 234 of the Constitution of India. The Rules framed under Article 234 is after consultation with the High Court and Article 233 lays thrust on the High Court exercising control over the candidates who ultimately get selected as Judges of the lower judiciary. The Supreme Court observed that consultation of the Government with the High Court under Article 234 of the Constitution of India is entirely of a different type as compared to his consultation with the Public Service Commission about procedural aspect of the selection. The Supreme Court observed that Articles 233 and 234 of the Constitution of India represent a well knit and complete scheme regulating the appointments at the apex level of the District Judiciary. The Supreme Court thereafter held that section 4 of the Bihar Act as unconstitutional. In our view, the said decision squarely applies to the Petitioner's case insofar as the contention of the Petitioner to seek benefit of the Circular and Article 309 is concerned. Applying the ratio of the said decision, the Petitioner is not justified in seeking age relaxation by relying on Article 309 of the Constitution of India. In paragraph No.45 of the said decision, the Supreme *5* Court after analyzing Article 309, 235, 233 and 234 observed that there is a clear intention of the Constitution makers that so far as question of recruitment and appointment to vacancies in the cadre of District Judges and subordinate judiciary is concerned neither legislature nor the Governor dehors any consultation with the High Court can have any independent say. It is further held that Article 234 ousts the legislative power for making suitable enactment on the topic covered by it. At the end it concluded that Articles 233 and 234 have their full-sway not being inhabited by any outside independent interference to be made by the Governor under proviso to Article 309 or by the State legislature in the that connection. In our view, ratio of this decision squarely applies to negate the contention of the Petitioner to make the GR applicable to his case.

¶12The decision of the Bombay High Court in the case of Krantikumar Kishanrao Kaulwar and Anr. vs. Maharashtra Public Service Commissioner and Anr. also goes against the Petitioner inasmuch as this Court observed that benefit of age relaxation to economically backward class for open category cannot be given for recruitment for post of Civil Judge, Junior Division and Judicial Magistrate, First Class in the absence of any decision by High Court Administration to amend the Rules pursuant to provision of the Constitution. What is sought to be canvassed by the Petitioner is also squarely covered against the Petitioner by the said decision.

¶13The decision of the Supreme Court relied upon by the Petitioner in the case of High Court of Delhi Vs. Devina Sharma is also not applicable to the facts of the present Petitioner since in the case before the Supreme Court, no examination was conducted during pandemic, whereas in the State of Maharashtra, recruitment process for judicial officers was held in 2019, 2020 and 2021. Furthermore on a complete reading of the decision of the Supreme Court in the case of (2020) 2 Mah LJ 543 Devina Sharma(supra) it is clear that same was based on a concession made by the counsel appearing for the Petitioner and therefore the said decision does not have any precedent value.

¶14The Supreme Court in the case of Hirandra Kumar (supra) is also relevant. The issue before the Supreme Court was that as a result of Rules 8 and 12 of the Uttar Pradesh Higher Judicial Service Rules, 1975, a candidate who has crossed the age limit prescribed between the date of last recruitment and the present recruitment was debarred from appearing in the competitive exam. The High Court permitted the candidate to appear in the preliminary exam, but the result was directed to be kept in sealed envelope. In paragraph No.11.5, the Supreme Court clarified that the directions in Malik Mazhar Sultan & Anr. (supra) are only *6* general directions issued to all High Courts to hold recruitment every year subject to the Rules of each High Court. The Supreme Court further observed that this general directions do not vest any enforceable right in a candidate. Therefore the reliance placed by the Petitioner in the case of Malik Mazhar Sultan & Anr. (supra) to seek age relaxation on the ground that if the time-schedule given by Malik Mazhar Sultan & Anr. (supra) decision would have been adhered to by the Respondents then he would not be age barred is also to be rejected. The Supreme Court further observed that validity of the Rule cannot be made to depend on the basis of individual hardships which inevitably arise in applying a principle of general application a Court in exercise of the power of judicial review does not take over that function for itself. In our view, the ratio of this decision squarely applies to reject the contention of the Petitioner insofar as the age relaxation is sought based on the decision in the case of Malik Mazhar Sultan & Anr. (supra) is concerned.

¶15In High Court of Kerala vs. Reshma A. and Anr., the above clarification made by the Supreme Court in the case of Hirandra Kumar(supra) was further reiterated in paragraph no.41 and argument that the direction in Malik Mazhar Sultan & Anr. (supra) will prevail over the provisions contained in the Rule was rejected. The Supreme Court in paragraph no.76 expressly rejected the contention of the Petitioner that on account of pandemic the recruitment process was delayed and the Petitioner should be given benefit of covid pandemic. Rejecting the said contention, the Supreme Court observed that a candidate has no vested right to appointment nor in equity they are entitled to only on the ground that the selection is delayed because of covid and the recruitment has to be in accordance with the Rules. In our view, the submission of the Petitioner to make Government Resolution dated 17th December 2021 applicable on account of pandemic is squarely answered by the Supreme Court against the Petitioner.

¶16To conclude, the Petitioner is not entitled for age relaxation by relying upon Government Resolution dated 17th December, 2021. The Writ Petition is dismissed with no order as

to

costs."

¶07In Malik Mazhar Sultan (3) And Another Vs. Uttar Pradesh Public Service Commissioner And Others, (2008) 17 SCC 703, the Hon'ble Supreme Court has ordered in paragraph Nos.9 and 10, as under :- "9. We request the Chief Justice of each High Court to constitute a committee of two or three Judges to monitor and oversee that timely selection and appointment of judicial *7* officers is made. The Chief Justice is further requested to constitute a special cell in the name of "Selection and Appointment" in the High Court or under such other name as the learned Chief Justice may consider proper with an officer of the rank of Registrar for assisting the Committee and the Chief Justice for complying with the aforesaid time schedule.

¶10The Registrar of the aforesaid Selection and Appointment Committee shall send to the Registrar General of this Court by 31st January every year report as regards the filling up of vacancies with copies to Minister for Law and Justice in the Central Government and the Law Minister of the State concerned. The Registrar would also bring it to the notice of the Committee and the Chief Justice, any deviation from the time schedule."

¶08In Sagar Satish Patil (Supra), it was canvassed by the learned Amicus Curiae that the decision in Hirandra Kumar Vs.High Court of Judicature at Allahabad & Anr., (2020) 17 SCC 401 and in High Court of Kerala Vs. Reshma A. and Anr.,

(2021) 3 SCC 755, were considered by the Hon'ble Supreme Court and it was held that the directions issued in Malik Mazhar Sultan (Supra), are only recommendatory. This Court finally concluded in Sagar Satish Patil (Supra) that considering the rules applicable to the recruitment of the District Judiciary and taking into account the verdict of this Court in Krantikumar Kishanrao Kaulwar Vs. Maharashtra Public Service Commission, 2020 (2) Mh.L.J.543, the relaxation in the age in the light of Government Resolution dated 17.12.2021, would not be available to these Petitioners and no relief could be granted in view of Reshma (Supra) and Hirandra Kumar (Supra).

¶09We also find from Malik Mazhar Sultan (Supra), that the Hon'ble Supreme Court has been monitoring the schedule for the recruitment to the posts by direct recruitment and promotion, in subordinate Courts in all States, except the State of Sikkim, where the cadre of judicial service is very small. Monitoring committees have been constituted in every High Court to ensure that appointments are made timely. Even time limits are fixed for issuance of appointment letters to the direct recruits.

¶10An argument has been canvassed before us that there could be a case of a candidate who did not make an attempt pursuant to the advertisement No.270 of 2021, since he became an LL.B. graduate thereafter, and before the present *8* advertisement could be issued, he has became age barred. In such cases wherein the candidate has passed the LL.B. course after the first exam post Covid, and became age barred immediately thereafter, we do not find that the Government Resolution dated 17.12.2021 could be of any assistance in such cases.

¶11Insofar as the reliance on the Government Resolution dated 03.03.2023 and the corrigendum dated

10.03.2023 in similar circumstances, this Court [Coram : Ravindra V. Ghuge & Y.G. Khobragade, JJ.] has delivered a judgment on 25.09.2023 in Writ Petition No. 11841 of 2023 and has concluded as under :- "3. The Government Resolution dated 03.03.2023 outlines the object for which the Government Resolution was introduced. It is specifically stated as under:- "izLrkouk%& Lokra«;kP;k ve`r egksRloh o"kkZps vkSfpR; lk/kwu jkT; 'kklukus 75 gtkj inHkjrhph izØh;k lq: dj.;kps ?kksf"kr dsys vlwu] ;kdjhrk inHkjrhojhy fucZa/k dkgh dkyko/khdjhrk f'kfFky dj.;kr vkys vkgsr-R;k vuq"kaxkus Hkjrh izØh;k lq: >kyh vkgs-njE;kuP;k dkyko/khr dkgh yksdizfrfu/khadMwu fuosnus izkIr >kyh vkgsr-lnj fuosnuka}kjs v'kh ekx.kh dj.;kr vkyh vkgs dh] fofo/k dkj.kkaeqGs ¼mnk-dksjksuk] lnks"k ekx.khi=s o ekx.khi= u ikBfo.ks b-½ iqjs'kk tkfgjkrh izfl/n u >kY;kus] T;k mesnokjkauk ifj{kkauk cl.;kph la/kh izkIr >kyh ukgh vkf.k R;kaph deky o;kse;kZnk laiq"Vkr vkyh vkgs] v'kk mesnokjkauk ifj{kkauk cl.;kph la/kh izkIr Ogkoh] ;kLro 'kklukus deky o;kse;kZnsr loyr ns.;kckcr ldkjkRed fu.kZ; ?;kok- ;k ik'oZHkwehoj mesnokjkauk deky o;kse;kZnsr f'kfFkyrk ns.;kph ckc 'kklukP;k fopkjk/khu gksrh- 'kklu fu.kZ; %& izLrkousr uewn dkj.kkapk lk/kdck/kd fopkj d:u] ;k 'kklu fu.kZ;k}kjs [kkyhyizek.ks lqpuk ns.;kr ;sr vkgsr-1½ ;k 'kklu fu.kZ;kP;k fnukadkiklwu rs fn-31 fMlsacj] 2023 Ik;Zar 'kkldh; lsosr ljGlsosus fu;qDrhlanHkkZr izfl/n gks.kkÚ;k loZ tkfgjkrhadfjrk vtZ dj.kkÚ;k mesnokjkalkBh lanHkkZ/khu fn-25-04-2016 P;k 'kklu fu.kZ;kr fofgr dsysY;k deky o;kse;kZnsr ¼[kqY;k izoxkZlkBh 38 o"ksZ o ekxkl izoxkZlkBh 43 o"ksZ½ nksu o"ksZ brdh f'kfFkyrk ¼[kqY;k izoxkZlkBh 40 o"ksZ o ekxkl izoxkZlkBh 45 o"ksZ½ ns.;kr ;sr vkgs-2½ --------------------------"

¶4In the above backdrop, a corrigendum was issued on

10.03.2023 and the State Government specifically mentioned those advertisements which would be covered by the Government Resolution dated 03.03.2023. The advertisement No.047/2023 is excluded from the ambit of the said Government Resolution. xxxxxx *9*

¶7This Petition need not be entertained for a second reason that the Government Resolution dated 03.03.2023 pertains to those posts for which a recruitment process was not conducted for several years as is set out in the reproduced portion. Several candidates became age barred. To give them one opportunity for appearing in the recruitment exam, the Government Resolution was introduced and by the corrigendum, the ten specific advertisements covered by the Government Resolution, were also specified.""

¶4In view of the above, no interference is called for. This Writ Petition is dismissed.

kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)