JAMALUDDINversusSTATE OF JAMMU & KASHMIR AND ORS.

                        [2011] 11 S.C.R. 690


A                          JAMAL UDDIN
                                  v.
           STATE OF JAMMU & KASHMIR AND ORS.
                (Civil Appeal No. 8093 of. 2004)
                      SEPTEMBER 29, 2011
B
           [J.M. PANCHAL AND H.L. GOKHALE, JJ.]

        Social Status certificate - Candidates belonging to
  Scheduled Castes or Scheduled Tribes - Seeking age
C relaxation -:- On facts, appellant's application for the post of
  Munsif in the Scheduled Tribe Category rejected since the
  appellant was overage - High Court not relaxing the age of
  appellant - Held: Order passed by the High Court is justified
  - If there is no age relaxation in the Rules, the same cannot
D be brought in ·by any judicial interpretation - Advertisement
  of the Public Service Commission issued in the year 2002,
  required the persons concerned to be of less than thirty five
  years of age at the relevant time - There was no age
  relaxation in favour of the candidates belonging to the
E Scheduled Castes or Scheduled Tribes, though there was a q
  antum of reservation provided for them - Jammu and Kashmir
  Civil Services (Judicial) Recruitment Rules, 1967.

      Appellant belongs to Scheduled Tribe. He was
  appointed as an adhoc Munsif in the Jammu & Kashmir
F Judicial Service. A Notification was issued by the Jammu
  & Kashmir Public Service Commission on 04.12.2001 for
  regular appointment whereby person should not be more
  than thirty five years of age as on the 1st January of the
  year in which the Notification was issued. The appellant
G applied for the post of Munsif in the Scheduled Tribe
  Category. The appellant's application was rejected since
  he was overage by eleven months. The appellant filed a
  writ petition. The Single Judge dismissed the petition

H                                690
JAMALUDDIN v. STATE OF JAMMU & KASHMIR AND 691
                    ORS.
since he was overage. The Division Bench also ·A
dismissed the appeaL Therefore,· the appellant filed the
instant appeal.

    Dismissing the appeal, the Court

     HELD: 1.1 In the instant case the advertisement of 8
the Public Service Commission issued in the year 2002,
required the persons concerned to be of less than thirty
five years of age at the relevant time. That age limit applied
to all the candidates. There was no age relaxation in
favour of the candidates belonging to the Scheduled C
Castes or Scheduled Tribes, though there was a quantum
of reservation provided for them. Therefore, the earlier
resolution of the Full Court of the High Court passed in
February 1982 has to be read as providing only for the
quantum and not for any age relaxation. If there is no age D
relaxation in the Rules, the same cannot be brought in by
any judicial interpretation. In the circumstances, there is
no error in the judgment of the Single Judge or that of
the Division Bench of the High Court. [Para 15] [700-C-E]
                                                            E
     1.2 There is some kind of anomaly in the sense that
there is no age relaxation at the level of Munsifs, though
it is so provided at the level of entry into the Higher
Judicial Service. Although, there is no inclination to
interfere with the order passed by the High Court on the F
judicial side, it is felt that the High Court on its
administrative side should examine the issue as to
whether age relaxation should be provided to the
candidates belonging to Scheduled Castes, Scheduled
Tribes and Other Backward Classes appearing for the
Judicial Service Examination at the Munsif level as is G
provided to the candidates appearing for the Higher
Judicial Service Examination. [Paras 13 and 16) [699-A;
700-F-G]

    State of Bihar vs. Bal Mukund Sah and Ors. AIR 2000     H
    692       SUPREME COURT REPORTS             [2011) 11 S.C.R.


A   SC 1296: 2000 (2) SCR 299; Umesh Chandra Shukla
    vs. Union of India and Ors. 1985 (3) SCC 721: 1985 (2)
    Suppl. SCR 367 - referred to.

          Riyaz Ahmad Gada vs. State of Jammu and Kashmir
    JK:.I (HC)(Suppl.) 2009 600; Syed Shamim Rizvi and Ors. vs.
8
    State of Jammuand Kashmir 2010 (1) SLJ 281 - cited.
                         Case Law Reference:
     JKJ (HC) (Suppl.) 2009 600       Cited            Para 9
C    2010 (1) SLJ 281                 Cited            Para 9
     2000 (2) SCR 299                 Referred to.     Para 13
     1985 (2) Suppl. SCR 367          Referred to.     Para 14
D       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8093 of 2004.
         From the Judgment & Order dated 24.2.2004 of the High
    Court of Jammu & Kashmir in LPA No. 133 of 2003 arising
    out of S.W.P. No. 994 of 2002.
E
       Ambrish Kumar, Dr. Pooja Jha, M.A. Rahman and
    Rameshwar Prasad Goyal for the Appellant.

         Gau.rav Pachnanda, Sr. AAG, Sunil Fernandes, Sidhant
F   Goel, Yawar Ali, Bharat Sangal, R.R. Kumar Vernica Tomer,
    Srijana Larra, G.M. Kawoosa and N. Ganpathy for the
    Respondents.

          The Judgment of the Court was delivered by
G       H.L. GOKHALE J. 1. This appeal seeks to challenge the
    order passed by a Division Bench of the High Court of Jammu
    and Kashmir dated 24.2.2004 in LPA No. 133/2003, confirming
    the order dated 8.9.2003 passed by a learned Single Judge
    dismissing the Writ Petition No. SWP 994/2002 filed by the
H   appellant.
JAMALUDDIN v. STATE OF JAMMU & KASHMIR AND 693
           ORS. [H.L. GOKHALE, J.]
    Facts leading to this appeal are this wise -                   A

     2. The appellant belongs to a Scheduled Tribe. He is born
on 31.1.1965. He was appointed as an adhoc Munsif in the
Jammu & Kashmir Judicial Service on 13.8.2001.
Subsequently, he applied for the post of Munsif in the             B
Scheduled Tribe category when a notification was issued by
the Jammu and Kashmir Public Service Commission on
4.12.2001 for the regular appointments. The notification
required the person to be of not more than thirty five years of
age as on the 1st January of the year in which the notification
was issued. In view thereof, the Commission informed him by        C
communication dated 21.5.2002 that his application was
rejected since he was overage by eleven months.

    3. Being aggrieved by that order the appellant filed the
above referred Writ Petition. A Single Judge who heard the         D
matter, noted that as per rule 7 of Jammu and Kashmir Civil
Services (Judicial) Recruitment Rules 1967 (Judicial Services
Recruitment Rules for short), the appellant was in fact overage.
This rule reads as follows:-
                                                                   E
          "7. Age. No person shall be recruited to the service
     who is more than 35 years of age on the first day of
     January preceding the year examination is conducted by
     the Commission for Recruitment to the Service."

While dismissing the petition, the Single Judge noted that by F
the time that matter was heard, the appellant had crossed the
age of 37 years which he claimed as the permissible age for
the Scheduled Tribe candidates. The Division Bench which
heard the Letters Patent Appeal also accepted the view taken ·
by the learned Single Judge, and therefore dismissed the G
appeal.

    4. Shri Ambrish Kumar, learned counsel appeared for the
appellant, and Shri Gaurav Pachnanda, learned Senior
Additional Advocate General of Jammu and Kashmir appeared
                                                                   H
    694        SUPREME COURT REPORTS                (2011] 11 S.C.R.


A   for the respondents. The State of Jammu and Kashmir, the
    Public Service Commission of Jammu and Kashmir and the
    High Court of Jammu and Kashmir through its Registrar General
    are joined as the respondents to this appeal.

       5. It is pointed out on behalf of the appellant that earlier
8
  there was no appropriate reservation for the Scheduled Castes
  and Scheduled Tribes in the services of State of Jammu and
  Kashmir, and also in the services of the High Court. Hence, the
  then Minister of Law and Justice, Union of India wrote to the
  Ch~f Justice of the High Court on 15.5.1979 drawing his
C attention to this position. The Union Law Minister stated in his
  letter as follows:-

          "1 ....

D          2. From the information received from the Jammu and
          Kashmir High Court last year, it transpires that there is no
          provision for reservation for Schedule Castes and
          Scheduled Tribes in direct recruitment to the State Judicial
          and Higher Judicial Services.
E      . 3 ...... You will appreciate that in their present stage of
         development, it would be difficult for the Scheduled Castes
         and Scheduled Tribes to be represented adequately in the
         State Judicial and Higher Judicial Services unless special
         measures like reservation are undertaken. Since such
F        reservation exists in other services, there does not seem
         to be sufficient reason why it should not be there in the
         State Judicial and Higher Judicial Services of the
         State ........ "

G        6. In view of this letter from the Union Law Minister, this
    subject was taken up in the Full Court Meeting of the High Court
    held from 23rd February to 26th February; 1982, wherein
    following decision was taken:-


H
JAMALUDDIN v. STATE OF JAM MU & KASHMIR AND 695
           ORS. [H.L. GOKHALE, J.]
                                                                      A
        PREAMBLE               .           RESOLVED

  14. Reservation of Seats for 14. Considered the report of_
  Schedule castes and Sched- Registrar and also the relevant
· uled Tribes in the Judicial  record. We are of the· opinion
  Service and Minister         that the general rules framed          B
  Services.                    by the Government of J&K in
                               this behalf are also applicable
                               to the Judicial Service as also
                               to the Ministerial .services of
                               the Judicial Department; and           c
                               such reservation are made
                               accordingly. The Government
                                be informed accordingly.

     7. Based on this resolution, it is submitted on behalf of the D
appellant, that whatever are the general rules applicable to the
Govemnientemployees in Jammu and Kashmir ought to be
deemed as applicable to the Judicial Services as also the
Ministerial Services of the· Judicial Department. The age limit
for entering into Government Service was upto thirty eight years E
of age for Schedule Castes and Schedule Tribes, and therefore
the appellant ought to have been allowed to give the
examination for recruitment to the post of Munsif since at that
time his age was less than thirty eight years. It was submitted
that the Public Service Commission was therefore in error in·
rejecting his application, and so also were the learned Single F
Judge and the Division Bench of the High Court.

     8. As far as this submission is concerned, it was pointed
out on behalf of the respondents that firstly at the time when this
resolution·was passed by the High Court in February 1982, no          G
age relaxation was provided for entering into the services of
the State of Jammu and Kashmir also, and therefore it cannot
be deemed that by passing of this resolution the High Court
also brought in the provision for age relaxation. At that time,
the recruitmentto the services under the State Governme·nt was        H
    696      SUPREME COURT REPORTS                 [2011] 11 S.C.R.


A governed under SRO No. 394/1981. It provided only for a
  quantum of reservation which was 8% for the Scheduled
  Castes. On 28.6.1994 the State Government increased the
  reservation for Schedule Tribes to 10%, for Schedule Castes
  to 8%, and for Other Backward Classes to 25%. The appellant
B had appeared for the selection held in the year 2002, and at
  that time the same percentage with respect to the quantum of
  reservation was applied. Under the Judicial Services
  Recruitment Rules the age limit for Schedule Castes or
  Schedule Tribes candidates was thirty five years, but there was
c no further age relaxation for them, and that is how the rejection
  of the candidature of the appellant was justified by the Public
  Service Commission.
         9. The learned counsel for the appellant pointed out that if
    we look to the letter of the Union Law Minister, the intention
D   therein was to request the High Court to see to it that the rules
    in the State Judiciary are brought on par with the rules which
    exist in rest of India. The resolution passed by the Full Court
    ought to be looked at from that perspective. In view of this
    submission on behalf of the appellant, the respondent pointed
E   out that the Union Law Minister's letter dated 15.5.1979 led the
    High Court to move in the matter. On 24.5.1979, the High Court
    directed the Registrar to examine the relevant rules and put up
    the proposal. The Registrar reported on 2.6.1979 that according
    to Rule 13 of the Jammu and Kashmir Schedule Castes and
F   Backward Classes Reservation Rules 1970, the seats required
    to be reserved for Scheduled Castes were to the extent of 8%.
    There was however, no such provision in the Judicial Services
    Recruitment Rules. He therefore suggested that the State
    Government may be approached to provide for 8% reservation
G   for the Scheduled Castes by incorporating a specific rule
    therein. The High Court in its subsequent meeting held on
    16.6.1979 asked the Registrar to inquire with the. State
    Government as regards the prevailing position regarding
    reservation, which he did. By way of a reply, the High Court
    received a copy of the letter dated 18.6.1979 sent by the State
H
  JAMALUDDIN v. STATE OF JAMMU & KASHMIR                     697
        AND ORS. [H.L. GOKHALE, J.]
Government to the Secretary Government of India, Law                A
Department, marked for the Registrar of High Court. In this reply
it was pointed out that 8% vacancies were reserved for the
candidates belonging to the Schedule Castes under the Jammu
and Kashmir Schedule Castes and Backward Classes
Reservation Rules 1970. It was however, stated that "these          B
Rules are applicable to all the services under the Government
except judicial services as the judiciary has since .beeri
separated from the executive."
     10. Shri Pachnanda, learned counsel appearing for the
respondents pointed out that the resolution passed by the Full      C
Court in February 1982 will have to be looked at in this
background. When some other Writ Petitions were filed in the
High Court concerning these rules, the Government took a
stand that whatever are the rules applicable for entry into the
Government Service will apply for the entry into the High Court     D
Service. However, the High Court administration did place a
conscious view before the bench that on principle the judicial
services under the High Court were separate from other services
under the State Government, and the rules governing
recruitment to the Government Service cannot be applied for         E
entry into the High Court Service. The stand taken by the High
Court administration has been accepted in two Division Bench
judgments of the High Court. First is the judgment in the case
of Riyaz Ahmad Gada Versus State of Jammu & Kashmir,
decided on 29.9.2009 and reported in [JKJ (HC) (Suppl.) 2009
                                                                    F
600]. The second judgment is in the case of Syed Shamim
Rizvi & Ors. Versus State of Jammu and Kashmir reported
in 201 O (1) SLJ 281. In the second judgment the High Court
has relied upon the judgment of this Court in State of Bihar Vs.
Bal Mukund Sah and Ors. reported .in [AIR 2000 SC 1296]. In         G
that matter this Court has held that rules made by the
Government cannot be brought into or forced upon the
recruitment of persons in the judicial services. The rules framed
under Article 309 by the State Government should be treated
as general rules, whereas those under Article 233 to 225
should be treated as special rules applicable for the Hiah Court.   H
   698      SUPREME COURT REPORTS                 (2011] 11 S.C.R.


A The learned counsel for the respondents pressed into service
  the same submission before us by pointing out that the
  provision of section 110 of the Jam mu and Kashmir
  Constitution is similar to Article 234 of the Indian Constitution
  concerning the subordinate judicial service.
B      11. The counsel for the appellant pointed out that Jammu
  and Kashmir Higher Judicial Service Rules 1983, provided for
  a relaxation of two years for the candidates belonging to
  Scheduled Castes and Scheduled Tribes, and therefore, similar
  relaxation should be made available for the entry to the
C Subordinate Judicial Service. Shri Pachnanda accepted that
  there was an anomaly in that since such relaxation of two years
  was provided only for the Higher Judicial Service. The age
  group expected for the Higher Judicial Service from the general
  category was 35 to 45 years, but for the Scheduled Castes and
D Scheduled Tribes and Other Backward Classes a relaxation in
  age of two years was permissible. HA submitted that, this was
  because the candidates from these categories were not easily
  available for the Higher Judicial Services. That difficulty was
  however, not there at the Munsif level. Therefore, no such
E relaxation was provided at the level of entry of Munsifs into the
  judicial service.
       12. It was pointed out on behalf of the appellant that the
  Jammu and Kashmir Civil Services (Classification, Control and
  Appeal) Rules, 1956, specifically provide in Rule 3 (2) that they
F apply to all Government employees except to the extent
  excluded. On this Shri Pachnanda pointed out that Judicial
  Services Recruitment Rules came in force subsequently in
  1967, and under Rule 1(3) thereof, all previous rules stand
  repealed. Rule 2 thereof, specifically states that these rules will
G apply to the selection of Munsifs. They are specific rules, and
  therefore, Civil Services (CC & A) Rules of 1956 will not apply
  to the entry of the Munsifs in the Judicial Services.
     Consideration of the rival submissions -
     13. We have noted the submissions of both the counsels.
H We quite appreciate the submission made on behalf of the
JAMALUDDIN v. STATE OF JAMMU & KASHMIR AND 699
           ORS. [H.L. GOKHALE, J.]
appellant, and we quite see that there is some kind of anomaly         A
in the sense that there is no age relaxation at the level of
Munsifs, though it is so provided at the level of entry into the
Higher Judicial Service. The respondents have already given
their explanation as to why this distinction is made and
according to them the same stands to reason. That apart, the           B
rules made by the High Court will govern the recruitment at the
Munsif level as well as at the level of the Higher Judicial Service,
and they have the force of law in view of the provision of Article
234 of the Constitution of India as interpreted by this Court in
Bal Mukund Sah (supra) which is comparable to section 110              c
of Constitution of Jammu and Kashmir.
      14. Shri Ambrish Kumar, learned counsel for the appellant
had contended that the provision for age relaxation available
for recruitment to the services in the State Government should
be deemed to be included in the Judicial Services Recruitment D
Rules: Shri Pachnanda on the other hand submitted that such
a course of action was not permissible. Our attention has been
drawn in this behalf, to a judgment of this Court in Umesh
Chandra Shukla Versus Union of India & Ors. reported in
[1985 (3) sec 721]. That matter was concerning the E
candidates who did not qualify for the viva-voce test in the
selection to the posts of Subordinate Judges in Delhi Judicial
Service, since they fell short in the written examination b}? one
or two marks only. After the finalisation of the list of candidates
who had qualified for viva-voice test, a moderation of the marks F
in the written test was done so that such candidates with less
marks become eligible. This Court held that no such ideas
outside the Rules can be brought in. The Court held that these
rules are to be read strictly. At the end of paragraph 13 the
Court held as follows:-                                             G

            "......... Exercise of such power of moderation is
     likely to create a feeling of distrust in the process of
     selection to public appointments which is intended to be
     fair and impartial. It may also result in the violation of the
                                                                       H
    700       SUPREME COURT REPORTS                [2011) 11 S.C.R.


A         principle of equality and may lead to arbitrariness. The
          cases pointed out by the High Court are no doubt hard
          cases, but hard cases cannot be allowed to make bad law.
          In the circumstances, we lean in favour of a strict
          construction of the Rules and hold that the High Court has
B         no such power under the Rules. We are of the opinion that
          the list prepared by the High Court after adding the
          moderation marks is liable to be struck down ...... "

         15. In the present case the advertisement of the Public
 C Service Commission issued in the year 2002, required the
    persons concerned to be of less than thirty five years of age at
    the relevant time. That age limit applied to all the candidates.
    There was no age relaxation in favour of the candidates
    belonging to the Scheduled Castes or Scheduled Tribes,
    though there was a quantum of reservation provided for them.
 D The earlier resolution of the Full Court of the High Court passed
    in February 1982, will therefore, have to be read as providing
    only for the quantum and not for any age relaxation. If there is
    no age relaxation in the rules, the same cannot be brought in
    by any judicial interpretation. In the circumstances we do not
-_E find any error in the judgment of the Single Judge or that of the
    Division Bench.

       16. Although, we are not inclined to interfere with the order
  passed by the High Court on the judicial side, we do feel that
F the High Court on its administrative side should examine the
  issue as to whether age relaxation should be provided to the
  candidates belonging to Scheduled Castes, Scheduled Tribes
  and Other Backward Classes appearing for the Judicial Service
  Examination at the Munsif level as is provided to the candidates
G appearing for the Higher Judicial Service Examination. We
  hope that this will be done without much delay.

        17. For the reasons stated above the appeal stands
    dismissed, though there will be no order as to the costs.

H N.J.                                          Appeal dismissed.