1. In this Writ Petition under Article 229 of the Constitution, the petitioner prays for a direction to the second respondent requiring it to accept the petitioner's application for being recruited as a Munsiff in the Mysore Judicial Services and proceed on the basis that the said application is a valid application.
2. The material facts of the case are very few. On 25-2-1965, a notification dated 23-2-1965 came to be published in the Official Gazette at the instance of the Second respondent calling for applications for a competitive examination as detailed in appendix I thereof, for recruitment to the cadre of Munsiffs in the Mysore Judicial Service. It was also notified that written examination would be held in the month of April 1965 and viva voce would be held in April and/or May 1965. A copy of that notification is marked as Annexure 'A'.
3. In response to that notification, the petitioner submitted his application on 24-3-1965. The Second respondent by its Order dated 8-4-1965, but served on the petitioner on 16-4-1963, rejected his application on the ground that his age as on 25-3-1965, is 35 years, 10 months and 19 days and hence he was over-aged by 10 months and 19 days. The second respondent opined that the petitioner was not entitled to the benefit of Rule 6(4) (b) of the Mysore State Civil Services (General Recruitment) Rules, 1957, to be hereinafter referred to as 'Rules'.
4. The principal question for decision is whether the petitioner is entitled to the benefit of Rule 6(4) (b) of the 'Rules'. There is no dispute that on 25-3-1965, the petitioner was 35 years 10 months and 19 days. Under the Mysore Munsiffs' (Recruitment) Rules, 1958, every candidate must have attained the age of 23 years, and not have attained, in the case of a candidate who possesses the qualification specified in stub-item (ii) of Item (4) the age of 40 years; in the case of a candidate who possess the qualification specified in sub-item (i) of Item (4) the age of 37 years if he belongs to the Scheduled Castes or the Scheduled Tribes; 35 years if he does not belong to the Scheduled Castes or the Scheduled Tribes, on the last date fixed for submission of applications. It is further admitted that the petitioner does not possess the qualifications specified in sub-item (ii) of item (4) in the Table. Therefore, in his case, the 35 years rule applies. But his contention is that in view of rule 6(4) (b), referred to earlier, he was qualified for applying to the post.
5. It may be noted that the petitioner was appointed as a Temporary Munsiff and Magistrate, First Class, under Rule 1S(A) of the Munsiffs' recruitment Rules, as in force then, on 2-9-1961. He continued to hold that post till 31-8-1962. In other words, he was functioning as a temporary Munsiff for a period of 11 months and 28 days. The case for the petitioner is that in view of the temporary post held by him, he was qualified to apply even though he had passed the age of 35 years on 25-3-1965 in view of Rule 6(4) (b) of the 'Rules'.
6. The Mysore Munsiffs' (Recruitment) Rules, 1958, are special rules dealing with the recruitment of Munsiffs.
7. They were framed under Article 294 read with proviso to Article 309 of the Constitution. There are similar rules of recruitment for some of the other departments also. But the 'Rules' deal with recruitment generally for the Mysore State Civil Services. Rule 1(3) (a) provides that the 'Rules' shall apply to all State Civil Services and to the holders of all posts whether temporary or permanent except to the extent otherwise expressly provided.
8. Rule 6(1) of the 'Rules' prescribes the age limit of every candidate for appointment to the State Civil Services by direct recruitment in respect of any post not otherwise provided for in the Rules of Recruitment specially made and applicable in respect of that post: But Sub-rule (4) of that rule says:
'Notwithstanding anything contained in Sub-rule (1) the maximum age limit for appointment shall be deemed to be abandoned in the following to the extent mentioned, namely ..... (b) In the case of a candidate who is or was holding temporarily a post under the Government, or holding a post under a local authority, by the number of years he is or was holding such post.............''
On the basis of this provision, it was urged that the petitioner, having functioned as a Temporary Munsiff for a period of 11 months and 28 days, was entitled to add that period to the maximum age prescribed under the Mysore Munsiffs' (Recruitment) Rules, 1958. It is not necessary to go into the correctness of this contention, as in our view the 'Rules' do not apply to the recruitment of Munsiffs. It may be noted that the 'Rules' were framed by the Governor under Article 309 of the Constitution. They do not purport to have been made under Article 234 of the Constitution. Rules relating to the appointment of persons other than District Judges to the Judicial Service of the State shall have to be made by the Governor of the State after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such States. It is not the case of the petitioner that the 'Rules' were made by the Governor after consultation with this High Court. In order that the rules relating to the appointment of persons other than District judges to the Judicial service of the State to be valid, the same has got to be done after consultation with the High Court.
9. Article 309 of the Constitution empowers the Governor to make rules regulating the recruitment and the conditions of services of persons appointed to the Civil Services of the State. But that Article, as its opening words themselves indicate, is subject to the other provisions of the Constitution. Article 234 is one such provision. The power of the Governor to make rules under Article 309 of the Constitution is not only subject to the other provisions of the Constitution, but it is also subject to any Act of the appropriate Legislature. But the rules to be made by him under Article 234 are not subject to any Act that may be enacted by the appropriate Legislature. But they can be made only after consultation with the State Public Service Commission and the High Court. The consultation with the High Court is not something nominal. It is the very essence of the matter. It must be borne in mind that our Constitution visualises the separation of the judiciary from the executive. It is no doubt true that the judicial service is also one of the States services. But it has got its own individualistic character. Unlike the other services of the State, the judicial service is expected to be independent of the executive. Often times, it has to pronounce on the correctness or the legality of the action taken by the other services of the State. There are occasions when it is required to pronounce on the legality of an action taken by the Government or even the Governor. Such being the case, it would not be proper to consider the judicial branch as being just one of the branches of the State. It is for that reason, the Constitution makers thought it proper to make separate provisions for the appointment of judicial Officers.
10. The scope of Article 234 came up for consideration before a Bench of this Court in K. N. Chandrasekhar v. State of Mysore, 1962 Mys LJ 87: (AIR 1963 Mys 292). This Court opined that Article 234 directs the appointment of persons to certain cadres of the Judicial Service of the State only in accordance with the rules made under that Article and which appoints the Governor of the State, the authority to make these rules after consultation with the High Court and the Public Service Commission. It held that the consultation with the High Court and the Public Service Commission is imperative. At p. 93 of the report (Mys LJ): (at p. 295 of AIR), this Court observed:
'Now, it is manifest from Article 234 of the Constitution that the Constitutional intent was that appointments to the judicial service in a State, unlike other State services, should be regulated only by rules made under that Article and not by a law made by the Legislature of the State, which was conferred power by Article 309 to make laws for recruitment to other services. The Judicial Service was selected for special treatment and appointments to it were excepted out of the operation of Article 309, and out of the orbit of ordinary Legislative Control. Article 234 incorporates a command of the Constitution on the subject of appointments to the cadres of the judicial service referred to in it and constitutes the Governor in a sense a select legislative organ for the enactment of rules for the accomplishment of that constitutional purpose. The status of the rules so enacted is as nigh as that of a law made by the Legislature under Article 309 and of the rules made under the proviso to it. The attributes of a Governor to enact rules under Article 234 therefore resemble those of a Legislature enacting legislation in its own legislative field. The similitude between the power of the Legislature and the power of the Governor being so obvious, it is clear that the bounds of permissible delegation in each case should also be similar.' Proceeding further, the Court observed:
'Article 234 which imposes on the Governor a constitutional duty to enact rules also confers power exercisable for its discharge and that power undoubtedly involves the exercise of the discretion by the Governor as to what the rules should be. It is by the exercise of such, direction that he determines, in consultation with the High Court and the Public Service Commission, the method to be adopted for making the appointments, the principles on which they should be made, and the standards by which the suitability of the person to be appointed should be judged.'
From a reading of that decision, it is clear that no rule relating to the appointment of the persons mentioned in Article 234 of the Constitution can be validly made by the Governor without consulting either the High Court or the Public Service Commission. As seen earlier, the Mysore Munsiffs' (Recruitment) Rules, 1958 prescribed the age limits for the appointments of the Munsiffs. Rules therein were made by the Governor under Article 234 of the Constitution in consultation with the High Court and the Public Service Commission. Any variation of that rule can only be made under Article 234 and that in accordance with the requirements of that Article. As seen earlier 'Rules' do not comply with the requirements of Article 234. That 'being so, we are unable to accept the contention of Mr. Javali, the learned Counsel for the petitioner that the age qualification prescribed under the Munsiffs' (Recruitment) Rules stood modified by rule 6(4) (b) of the 'Rules'. Our view that appointments to judicial services of the State other than that of the District Judges should be made only in accordance with the rules made by the Governor under Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State and not under rules framed by him under Article 309 of the Constitution is also supported by the decision of the Madras High Court in N. Devasahayam v. State of Madras, AIR 1958 Mad 53 and that of the Rajasthan High Court in Rajvi Amar Singh v. State of Rajasthan, .
11. For the reasons mentioned above, we are unable to agree with the petitioner's contention that he had the required age qualification.
12. This takes us to the only remaining contention of the petitioner that the age qualification prescribed in Sub-clause (4) or Clause (8) of the Notification published by the Mysore Public Service Commission is violative of Articles 14 and 16 of the Constitution. That sub-clause 'reads:
'Must have attained the age of 23 years and not have attained, in the case of a candidate who possesses the qualification specified in sub-Item (ii) of item (3), the age of 40 years; in the case of a candidate who possesses the qualification specified in sub-item (i) of item (3), the age or 40 years if he belongs to the Scheduled Castes or Scheduled Tribes; 35 years if he does not belong to the Scheduled Castes or Scheduled Tribes, on the last date fixed for submission of application, viz. 25th March 1965.'
Item (2) of Sub-clause (3) of Clause (6) reads:
'must be a Police Prosecutor or Assistant Public Prosecutor in any of the Criminal Courts In the State of Mysore, or a ministerial employee of the High Court of Mysore or in the law Department of the Mysore Government Secretariat, or in the Office of the Advocate General for Mysore, the total period of service and the period of practice, if any. together being not less than four years immediately before the lust date fixed for submission of the application by the candidate.'
From the above quoted rules, it is clear that any Police Prosecutor or Assistant Public Prosecutor, even if he had functioned in that capacity for a very short period may be either temporarily or permanently--if the total period during which he had functioned as Police Prosecutor or Assistant Public Prosecutor and the period during which he had practised as a lawyer is together four years or more, the maximum age qualification prescribed for him is 40 years, whereas the maximum age prescribed for a practising lawyer is 35 years with four years of practice. Stranger still is, for an Advocate who had functioned as a temporary Munsiff even if it is for a period of four years or more, the maximum age fixed is 35 years whereas a ministerial employee in one of the Offices mentioned in the rule, if ho is a law graduate and has functioned as such an employee either temporarily or permanently is entitled to apply for recruitment till the age of 40 years. The learned Government Pleader was not able to tell us the reason behind this rule. Any classification to be a valid classification must have a reasonable nexus with the object behind the rule. We are unable to see any basis for the classifications made in Clause (6) of the Notification, which is based on the Mysore Munsiffs' (Recruitment) Rules, 1958. Hence, the rule in question is of doubtful validity. Rut we have not thought it necessary to consider whether that rule should be struck down because by striking down that rule, the petitioner gets no benefit. Even if we strike down that rule, the petitioner cannot succeed in this petition. Merely because item (ii) of Sub-clause (3) of Clause (6) of the Notification is invalid, it does not follow that the age qualification prescribed would stand raised to 40 years. That being so, we have not thought it necessary to finally decide the validity of the rule in question. We have pointed out the anomaly in question so that the rule-making authority may bear that fact in mind and examine the necessity to suitably amend the rules,
13. For the reasons mentioned above, this Petition fails and the same is dismissed. No costs.
14. Petition dismissed.