GHANASHYAM MUDULI AND THREE Vs. ORISSA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS PRINCIPAL SECRETARY

JUDGEMENT

(1.) THE petitioners in this writ application have made prayers to quash the Clause -4 (ii) of the Advertisement No.6 of 2009 -10 under Annexure -1 inviting application for Orissa Judicial Service Commission, 2010 issued by opposite party No.1, Orissa Public Service Commission and to direct the opposite parties to relax the age limit prescribed for Socially and Educationally Backward Classes (SEBC) up to 5 years.

(2.) PETITIONERS are stated to be the practicing Advocates of Orissa High Court eligible for appointment to the post of Civil Judge under the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (for short '2007 Rules). Petitioner Nos.1 to 3 belong to SEBC. Advertisement under Annexure -1 was issued on 18th February, 2010 inviting applications for Orissa Judicial Service Examination, 2010 fixing the last date of submission of application to 18th March, 2010. As per Clause -4 of the Advertisement, in order to be eligible to apply for the examination, a candidate must not be below 21 years and above 32 years of age. It has been further provided that the prescribed upper age limit will be relaxable, inter alia, up to a maximum of 3 years in the case of a candidate belonging to SEBC, who is eligible to avail of reservation applicable to such candidate. It is averred that stipulation for relaxation up to a maximum age of 3 years only in case of SEBC is not in conformity with the provision under Section 6 of the Orissa Reservation of Posts and Services (for Socially and Educationally Backward Classes) Act, 2008 (for short '2008 Act), which provides, inter alia, that for appointment of candidates belonging to SEBC to the post of services under the State, the upper age limit prescribed for the recruitment shall be increased by five years, 2008 Act, has been enacted to fulfill the obligation of the State under Article 16(4) of the Constitution of India to foster social and economic advancement of the people belonging to SEBC. Impugned Advertisement under Annexure -1 has been issued under the provisions of 2007 Rules after coming into force of the 2008 Act. Relaxation of upper age limit of candidates belonging to SEBC up to a maximum 3 years under Annexure -1 is not in conformity with the provisions under the 2008 Act and has deprived the petitioners of being eligible to be considered for appointment to Orissa Judicial Service inasmuch as the four petitioners are aged 36, 34, 33 and 33 respectively. Therefore, the impugned provision in Clause -4 under Annexure -1 is illegal and opposed to law and public policy. It is further averred that Rule 47 of the 2007 Rules provides that where the Government in consultation with the High Court is satisfied that it is necessary or expedient so to do, it may by order, for reasons to be recorded in writing, relax any of the provisions of said rules with respect to any class or category of persons or posts in the service. As the Advertisement has been issued in accordance with 2007 Rules, provision under which is not in conformity with 2008 Act, it is a fit case in which direction for exercising jurisdiction under Rule 47 of 2007 Rules should be issued to relax the age limit of candidates belonging to SEBC up to a maximum of 5 years. It is further case of the writ petitioners that provision relating to age limit of candidates under Clause -4 of the Advertisement to be not below 21 years of age is also an outcome of non -application of mind and discriminatory inasmuch as normally a candidate can obtain Three Years Course Law degree on completion of minimum 23 years of age and a candidate can obtain Five Years Course law degree on completion of 22 years of age. Therefore, the minimum age limit of the candidates should be fixed at 23 years and, consequently, the maximum age limit should be extended to 35 years.

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