REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8093 OF 2004   

Jamaluddin      …Appellant

Versus

State of Jammu & Kashmir and Ors.                        …Respondents

J U D G E M E N T

H.L. Gokhale J.

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 appellant.

Facts leading to this appeal are this wise –  

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 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 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 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:-

“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 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 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 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 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  

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Court.  Hence, the then Minister of Law and Justice, Union of India wrote to the  

Chief Justice of the High Court on 15.5.1979 drawing his attention to this position.  

The Union Law Minister stated in his  letter as follows:-

“1….  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. 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  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……..”

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 23 rd February to  

26th February, 1982, wherein following decision was taken:-

PREAMBLE RESOLVED 14.  Reservation of Seats for Schedule  castes  and  Scheduled  Tribes  in  the  Judicial Service and Minister Services.

14.  Considered the report of Registrar  and also the relevant record.  We are of  the  opinion  that  the  general  rules  framed  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  such reservation are made accordingly.  The  Government  be  informed  accordingly.  

7. Based on this resolution, it is submitted on behalf of the appellant,  

that whatever are the general rules applicable to the Government employees in  

Jammu and Kashmir ought to be deemed as applicable to the Judicial Services as  

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also the Ministerial Services of the Judicial Department.  The age limit for entering  

into Government Service was upto thirty eight years 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 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 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 recruitment to the services under  

the State Government was 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  

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 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.

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9. The learned counsel for the appellant pointed out that if we look to  

the letter of the Union Law Minister, the intention 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 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 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 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 Government to the Secretary Government  

of India, Law 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  

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Rules  are  applicable  to  all  the  services  under  the  Government  except  judicial   

services as the judiciary has since been separated from the executive.”

10. Shri  Pachnanda,  learned  counsel  appearing  for  the  respondents  

pointed out that the resolution passed by the Full 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  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 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 600].   The second judgment is in the case of  Syed Shamim  

Rizvi & Ors. Versus State of Jammu and Kashmir reported in 2010 (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 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  

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as  special  rules  applicable  for  the  High  Court.   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 Jammu and Kashmir Constitution is similar  

to  Article  234  of  the  Indian  Constitution  concerning  the  subordinate  judicial  

service.

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  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 Scheduled Tribes and Other  

Backward Classes a relaxation in age of two years was permissible.  He 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 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 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)  

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thereof, all previous rules stand repealed.  Rule 2 thereof, specifically states that  

these rules  will  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.   We quite  

appreciate the submission made on behalf of the appellant, and we quite see that  

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. 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 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 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 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  

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India & Ors. reported in [1985 (3) SCC 721].  That matter was concerning the  

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  by  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 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:-

“………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  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  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  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.  The earlier resolution of the Full Court of the High  

Court passed in February 1982, will therefore, have to be read as providing only  

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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 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  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  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.

…………………………………..J.  ( J.M. Panchal )

…………………………………..J.  ( H.L. Gokhale  )

New Delhi

Dated: September 29, 2011

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