IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Rajesh Kumar Saini Vs. Rajasthan High Court & Others (S. B. Civil Writ Petition No.3101/2010) S. B. Civil Writ Petition under Article 226 of the Constitution of India. Date of Judgment: March 11th, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. C.P. Sharma, for the petitioner. BY THE COURT: The issues involved in this case are: 1. Whether this court can direct the Executive to amend Rajasthan Subordinate Courts Ministerial Establishment Rules,1986 (for short `Rules, 1986') or not?, 2. Whether under the present Rules,1986, this court can direct that the power of relaxation with regard to age should be invoked by the respondents in favour of the petitioner, or not?, and 3. Whether although the petitioner is hit by the upper age limit, still this court can direct that he be treated eligible regardless of the maximum age or not? 2. These three issues arise in the following factual matrix: The petitioner, who happens to be a member of Other Backward Class (for short `OBC'), was born on 4-2-1974. On January 8, 2010, the District & Sessions Judge Banswara issued an advertisement for four posts of Hindi Stenographer. According to the said advertisement, while the minimum age for the said post is 18 years, the maximum age is 33 years. Since the petitioner is already over-aged, he is aggrieved by the upper age limit prescribed in the advertisement. According to him, the upper age limit prescribed in Rajasthan High Court Staff Service Rules, 2002 (for short `Rules, 2002') is 35 years. Moreover, in the Rajasthan Service Rules (for short `RSR') the upper age limit is also 35 years. But the upper age limit prescribed in the Rules,1986 is only 33 years. The Rules, 2002 and the RSR both provide relaxation of two years in the case of OBC. Rules,1986 also provide for relaxation of two years in the case of OBC. However, the petitioner is aggrieved by the fact that since the upper age under the Rules,1986 is 33 years, since the relaxation is only for two years, therefore, the maximum age after relaxation would be only 35 years. But under the Rules,2002, and the RSR after relaxation it would be 37 years. The petitioner's contention is that in case the Rules,1986 were amended and the upper age limit were increased from 33 years to 35 years, then after relaxation, the upper age limit would be 37 years. If this were so, then the petitioner would be eligible for the post. Hence, this petition before this Court. 3. Mr. C.P. Sharma, the learned counsel for the petitioner, has contended according to Rule 36 of the Rules,1986 the other conditions of service shall be regulated by the RSR. Therefore, a parity has to be maintained between the two Rules. Thus, upper age limit prescribed in RSR should equally be applied to the Rules, 1986. Secondly, the staff of the High Court and the staff of the Subordinate Courts function under the ultimate authority of the High Court of Rajasthan. While the Rules,2002 prescribe the maximum age limit as 35, Rules,1986 prescribe the upper age limit as 33. Since the staff works under the same authority, two different upper age limits cannot be prescribed under two different Rules. Thus, a parity has to be maintained. Thirdly, Rule 9 being violative of Article 14 of the Constitution is unconstitutional. Since, Rule 9 is unconstitutional, this Court has ample power to direct respondents to amend the Rules and to bring in consonance with Rules,2002 and the RSR. Lastly, since the present case is a case of hardship, the respondents should be directed to relax the age of the petitioner and to treat him eligible for the post, notwithstanding the fact that he has crossed the upper age limit. 4. Heard learned counsel for the petitioner, considered the material available on record. 5. Rule 36 of the Rules, 1986 reads as under:- 36. Regulation of leave, allowance, pension etc.- Except as provided in these rules, the pay, allowance, pension, leave and other conditions of service of the Staff shall be regulated by:- 1. The Rajasthan Service Rules, 1951 as amended up to date. 2. The Rajasthan Travelling Allowance Rules, as amended up to date. 3. The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 as amended up to date. 4. The Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 as amended up to date. 5. The Rajasthan Civil Services (Conduct) Rules, 1971 as amended up to date. 6. The Rajasthan Civil Services (Unification of Pay Scales) Rules, 1950 as amended up to date. 7. The Rajasthan Civil Services (Rationalization of Pay Scale) Rules, 1956 as amended up to date. 8. The Rajasthan Civil Services (Revised pay scale) Rules, 1961 as amended up to date. 9. The Rajasthan Civil Services (New Pay Scales) Rules, 1969 as amended up to date. 10. The Rajasthan Civil Services (Revised New Pay Scales) Rules, 1976 as amended up to date. 11. Any other Rules made by the appropriate authority under the proviso to Article 309 of the Constitution of India and for the time being in force. Provided that the powers exercisable under the aforesaid rules and the orders by the Government shall be exercisable by the High Court. A bare perusal of the Rule 36 clearly reveals that it begins with an exception clause as it contains the phrase “Except as provided in the rules”. Since the Rules, 1986 do provide the maximum age limit, obviously the RSR is inapplicable on the point of upper age limit. Therefore, the contention of the learned counsel that the same maximum age limit has to be prescribed in Rules,1986 as prescribed in RSR is without merit. 6. It is, certainly, a well settled principle that Article 14 does not prohibit classification. A classification, as long as it is made on intelligent basis and it has some nexus to the object of the Rules. Such a classification would be constitutionally valid. In order to appreciate the applicability of Article 14 of the Constitution, one needs to understand the composition of the judiciary. The Judiciary in the State is divided into two categories namely, subordinate judiciary, and the higher judiciary. While subordinate judiciary includes the subordinate courts, which are subordinate to the High Court, the higher judiciary consists of the High Court. Therefore, the staff recruited in these two different categories are ipso facto governed by two different and separate service Rules. Since the categories are distinct and separate, they do not form a homogeneous class. Therefore, while enacting two different Rules, the Executive is justified in prescribing two different maximum age limits. Moreover, it is not unusual for different service Rules to prescribe different ages for selection and even for superannuation. Thus, the contention that all the service Rules should prescribe same upper age limit for selection is untenable. Most importantly, since two distinct categories do not form a homogeneous class, the petitioner is not justified in claiming that the concept of equality contain in Article 14 of the Constitution is being violated. For, in the present case, like are not being treated as unlike. Hence, the contention raised by learned counsel for the petitioner with regard to the constitutionality of Rule 9 is unacceptable. 7. A power of relaxation is a discretionary power bestowed on an authority. A person cannot claim that it is his fundamental or civil right that such a power should be invoked in his favour. For, discretion would have to function both ways—in favour of, or against the person. A discretionary power, generally should not be cribbed, cabined and confined by the exercise of judicial power. After all, some “play at the joints” has to be given to the Executive as well. Therefore, it is for the Executive to decide whether the power of relaxation in upper age limit should be exercised or not. Furthermore, the present case is not of such a hardship when this court should interfere in the discretionary power and direct the respondents to use its discretion in favour of the petitioner. Therefore, the plea of the petitioner that such a direction should be issued to the respondents is without any merit. 8. Admittedly the petitioner is beyond the upper age limit. Therefore, by no stretch of imagination can this court direct that he be “deemed” within the age limit. Such a direction issued by this court, naturally would be contrary to the provisions of law. This court is certainly not above the law. Hence, this court can not violate the law. Even misplaced sympathy and misplaced concept of equality cannot convince this court to violate the law. The courts are meant to uphold the rule of law; the prayer made by the petitioner is highly unreasonable. 9. It is, indeed, a settled principle of law that under the garb of power of judicial review, the judiciary cannot direct the Executive or the Legislature to amend or to enact a law. Enacting or amending an Act is exclusively in the domain of Legislature; amending a Rule is within the exclusive domain of the Executive. Therefore, the judiciary should not enter into the arena kept apart for the Executive in the Legislature. Therefore, the first prayer made by the petitioner that this Court should direct respondents to amend Rule 9, Rules,1986 and to increase the upper age limit is clearly unacceptable. 10. For the reasons, mentioned above, the writ petition is devoid of any merit. It is, hereby, dismissed. There shall be no order as to cost. ( R.S. CHAUHAN ) J. arn