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M.I Nadaf v. The State Of Mysore And Another
Structured Summary of the Court's Opinion (Order of Hegde, J.)
Factual and Procedural Background
This is a writ petition under Article 226 of the Constitution. The petitioner sought a direction to the second respondent to accept his application for recruitment as a Munsiff in the Mysore Judicial Services and to proceed on the basis that his application was valid.
Relevant chronological facts stated in the opinion:
- 23-2-1965: Notification (Annexure A) calling for applications for competitive examination for recruitment to the cadre of Munsiffs in the Mysore Judicial Service was published in the Official Gazette.
- 24-3-1965: The petitioner submitted his application.
- 8-4-1965 (order dated; served on petitioner 16-4-1965): The second respondent rejected the petitioner's application on the ground that the petitioner was over-aged—on 25-3-1965 his age was 35 years, 10 months and 19 days, making him over the 35 years limit by 10 months and 19 days.
- 2-9-1961 to 31-8-1962: The petitioner had earlier been appointed and functioned as a temporary Munsiff and Magistrate, First Class, for a period of 11 months and 28 days under Rule 15(A) of the Munsiff's Recruitment Rules.
The petitioner's principal claim was entitlement to the benefit of Rule 6(4)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 (referred to in the opinion as the “Rules”), which he said would effectively enhance the maximum age limit by the period he had served temporarily.
Legal Issues Presented
- Whether the petitioner was entitled to the benefit of Rule 6(4)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 (i.e., whether the period the petitioner served as a temporary Munsiff could be added to the maximum age limit applicable to him).
- Whether the Mysore State Civil Services (General Recruitment) Rules, 1957 (framed under Article 309) could modify or operate to alter the age qualification prescribed under the Mysore Munsiffs' (Recruitment) Rules, 1958 (which were framed under Article 234).
- Whether the age qualification prescribed in sub-clause (4) of Clause (6) of the Notification (as based on the Mysore Munsiffs' (Recruitment) Rules, 1958) was violative of Articles 14 and 16 of the Constitution.
Arguments of the Parties
Petitioner's Arguments
- He submitted his application within the notified period and contends he meets the requisite qualifications.
- He argued that, by reason of Rule 6(4)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957, the period during which he functioned as a temporary Munsiff (11 months and 28 days) should be added to the maximum age limit applicable to him, making him eligible despite being 35 years, 10 months and 19 days on 25-3-1965.
- As an alternative or additional contention, he challenged the age qualification in the Notification (clause 6(4)) as violative of Articles 14 and 16 of the Constitution.
Respondent's (Second Respondent / Government) Arguments
- The second respondent rejected the application because on the critical date (25-3-1965) the petitioner exceeded the maximum age of 35 years by 10 months and 19 days.
- The second respondent relied on the position that Rule 6(4)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 does not apply to recruitment of Munsiffs because those “Rules” were made under Article 309 of the Constitution and not under Article 234; whereas recruitment to the Mysore Judicial Service (Munsiffs) is governed by the Mysore Munsiffs' (Recruitment) Rules, 1958 made under Article 234 after consultation with the High Court and the Public Service Commission.
- The Government Pleader was unable to give a reasoned basis for the differential classifications reflected in clause 6 of the Notification (i.e., why certain categories had different maximum ages), which the Court observed as an anomaly.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K.N. Chandrasekhar v. The State of Mysore, 1962 Mys. L.J. 87 | Establishes that Article 234 requires rules for appointments to certain judicial cadres to be made by the Governor after consultation with the High Court and the Public Service Commission; such consultation is imperative and appointments to judicial service must be regulated by rules under Article 234. | The Court relied on this decision to hold that the Mysore Munsiffs' (Recruitment) Rules, 1958 (made under Article 234) govern appointments to the Munsiff cadre and that the Mysore State Civil Services (General Recruitment) Rules, 1957 (made under Article 309) cannot validly alter those specially framed judicial-service rules. |
| N. Devasahayam v. State of Madras | Used as supporting authority for the proposition that rules for judicial appointments must be made under Article 234 with required consultation. | Cited by the Court as supportive precedent for the view that judicial service appointments should be regulated under Article 234 rules rather than by general rules under Article 309. |
| Rajvi Amar Singh v. The State Of Rajasthan, A.I.R. 1956 Raj. 104 | Also cited in support of the principle that appointments to judicial service cadres must comply with Article 234 formalities. | Relied upon as additional supporting authority for the Court's conclusion that rules under Article 309 cannot displace rules made under Article 234 for judicial appointments. |
Court's Reasoning and Analysis
The Court proceeded by applying constitutional structure and the nature of rule-making powers to the specific facts:
- Identification of the competing rules: The Court contrasted the Mysore Munsiffs' (Recruitment) Rules, 1958 (specific rules for recruitment of Munsiffs made under Article 234) with the Mysore State Civil Services (General Recruitment) Rules, 1957 (general rules made under Article 309).
- Constitutional hierarchy and subject-matter specificity: The Court emphasized that Article 309 empowers the Governor to make rules for recruitment for State Civil Services generally, but that this power is subject to other constitutional provisions, including Article 234. In contrast, rules under Article 234 relating to judicial appointments have a separate constitutional status and must be made after consultation with the State Public Service Commission and the High Court.
- Imperative consultation under Article 234: Relying on K.N. Chandrasekhar (and other supporting High Court decisions), the Court noted that consultation with the High Court and the Public Service Commission in making rules under Article 234 is not a mere formality — it is essential. The Court emphasized the distinct and independent character of the judicial service, which justifies separate constitutional treatment.
- Application to Rule 6(4)(b) contention: Because the Mysore State Civil Services (General Recruitment) Rules, 1957 were made under Article 309 and not under Article 234, and because the Munsiffs' Recruitment Rules (1958) were made under Article 234 (after the mandated consultation), the Court concluded that the general “Rules” (Article 309 rules) do not apply to recruitment of Munsiffs and therefore could not operate to modify the specific age limits set by the Munsiffs' (Recruitment) Rules. Consequently, the petitioner could not claim the enhancement of the maximum age under Rule 6(4)(b) of the general “Rules.”
- On the Articles 14 and 16 challenge: The Court examined the structure of clause 6 of the Notification and observed an anomalous classification — e.g., some categories (Police Prosecutor/Assistant Public Prosecutor or certain ministerial employees with law qualifications) could have a maximum age of 40 years, while practicing advocates or temporary Munsiffs might have a maximum age of 35 years despite similar periods of service or practice. The Court noted the absence of an explanation from the Government Pleader for this classification, and stated that a valid classification must have a reasonable nexus with the object behind the rule.
- Disposition on the equality challenge: Although the Court described the age-classification as of "doubtful validity" and pointed out the anomaly, it declined to decide finally on striking down the impugned portion because even if that clause (item (ii) of sub-clause (3) of clause 6) were struck down, the petitioner would not gain any benefit. Thus, the Court did not base its ultimate decision on Articles 14 and 16.
Holding and Implications
Holding:
DISMISSED. The petition fails and is dismissed. No costs.
Direct effects and immediate consequences:
- The petitioner's request that the second respondent be directed to accept his application and treat it as valid was rejected; the petitioner remains ineligible on the ground of age under the applicable Munsiffs' (Recruitment) Rules.
- The Court refused to apply Rule 6(4)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 to raise the petitioner's maximum age because those general rules were made under Article 309 and cannot modify the specific Munsiffs' rules made under Article 234.
- The Court observed an apparent anomaly in age-classifications in the Notification (and the underlying Munsiffs' rules) which may warrant consideration by the rule-making authority, but the Court did not strike down the rule since it would not help the petitioner in this case.
Broader legal implications:
The decision reinforces the principle (as applied in this case) that appointments to judicial services falling within Article 234 must be governed by rules made under Article 234 (with the mandatory consultation), and that general civil service rules made under Article 309 cannot validly be used to alter or displace those specific judicial-service rules. The Court did not, however, purport to lay down any new or different precedent beyond applying and following existing authority; it relied on earlier decisions for the legal principle and applied that principle to the facts at hand.
Order of the Court was made by Hegde, J.:—
In this writ petition under Article 226 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.
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’.
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 16-4-1965, 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 the “Rules”.
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 sub-item (ii) of item (4) the age of 40 years; in the case of a candidate who possesses 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 application. 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.
It may be noted that the petitioner was appointed as a temporary Munsiff and Magistrate, First Class, under Rule 15(A) of the Munsiff's 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”.
The Mysore Munsiffs' (Recruitment) Rules, 1958 are special rules dealing with the recruitment of Munsiffs. They were framed under Article 234 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.
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 the 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 enhanced 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 eorrectness 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 the 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.
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 is 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.
The scope of Article 234 came up for consideration before a Bench of this Court in K.N Chandrasekhar v. The State of Mysore . 1962 Mys. L.J 87. 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 Page 93 of the report, 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 high 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 the power 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 after 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 Rule 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 and that of the Rajasthan High Court in Rajvi Amar Singh v. The State Of Rajasthan . A.I.R 1956 Raj. 104..
For the reasons mentioned above, we are unable to agree with the petitioner's contention that he had the required age qualification.
This takes us to the only remaining contention of the petitioner that the age qualification prescribed in sub-clause (4) of Clause (6) 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 aud not have attained, in the case of a candidate who possesses the qualification specified in sub-items (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 of 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 paractice, if any, together being not less than four years immediately before the last 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 he 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 of Mysore made in clause (6) of the Notification, which is based on the Mysore Munsiff's (Recruitment) Rules, 1958. Hence, the rule in question is of doubtful validity. But 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.
For the reasons mentioned above, this petition fails and the same is dismissed. No costs.
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