IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WP(C).No. 24827 of 2011(R) -------------------------- PETITIONER(S): ------------------ VINCENT RAPHAEL, AGED 49, S/O. A.P.RAPHAEL, ANTHIKAD HOUSE, KAKKANAD P.O., KOCHI-30, ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SRI.ADEEP ANWAR RESPONDENT(S): ------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE REGISTRAR SUBORDINATE JUDICIARY, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R2 SRI.B.UNNIKRISHNA KAIMAL FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MM WP(C)NO.24827/2011(R) APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF DISCHARGE CERTIFICATE ISSUED BY THE INDIAN AIR FORCE P2 COPY OF EX-SERVICEMEN IDENDTITY CARD ISSUED BY THE DISTRICT SAINIK WELFARE BOARD P3 COPY OF ENROLLEMENT CERTIFICATE ISSUED BY THE BAR COUNCIL OF KERALA DATED 22-07-2000 P4 COPY OF NOTIFICATION NO.B1-82403/2010-B4/REC 4 FOR THE EXAMINATION ISSUED BY THE 2nd RESPONDENT P5 COPY OF KERALA HIGHER JUDICIARY EXAM APPLICATION PREFERRED BY THE PETITIONER P6 COPY THE REPRESENTATION DATED 12-08-2011 BY THE PETITIONER P7 COPY THE LETTER DATED 23-08-2011 ISSUED BY THE 2nd RESPONDENT P8 COPY OF LETTER DATED 03-09-2011 ISSUED BY THE 2nd RESPONDENT TRUE COPY P.A. TO JUDGE MM K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 24827 OF 2011 ----------------------------------------------------------- Dated this the 20th September, 2011. JUDGMENT The petitioner has filed this writ petition being aggrieved by Exts.P7 and P8 proceedings by which, his application for selection and appointment to the post of District Judge has been rejected. The petitioner is an ex-service man and a practicing Advocate. He is aged 49 years. His application has been rejected for the reason that he is over aged. 2. According to the petitioner, he is an ex-service person entitled to the benefit of age relaxation in accordance with the provisions of Rule 10(e) of Part II, Kerala State and Subordinate Service Rules, 1958 (KS & SSR for short). In Ext.P8, what has been stated is that only Rule 10(c) of Part II KS & SSR is applicable to the selection and therefore the petitioner is not entitled to any age relaxation. According to the petitioner the stand adopted by the second respondent is illegal, unsustainable and violative of Art.14 of the Constitution. 3. The counsel for the petitioner points out that as per Rule 10(e) of Part II, KS & SSR, 1958 the petitioner is entitled to WPC24827/2011 2 relaxation of age and if age relaxation is granted, his application would be perfectly in order as per Ext. P1 notification. It is pointed out that the Special Rules do not specifically exclude Rule 10(e). Further, Rule 7 of the Kerala State Higher Judicial Services Special Rules, 1961 (the Special Rules for short) specifically makes all rules relating to pay and allowances and other conditions of service that are applicable to Government servants in general, applicable to the higher judicial service also. Consequently, Rule 10(e) in the absence of any specific exclusion in the Special Rules is perfectly applicable to the case of the petitioner. 4. Mr. K.R.B.Kaimal, Senior Advocate who appears for the second respondent counters the above contentions of the counsel for the petitioner by pointing out that Ext.P1 notification has been issued under the Special Rules incorporating the very same qualifications prescribed by the Rules. He places particular reliance on Rule 3(2)(b) of the Special Rules to contend that only sub rule (c) of Rule 10 of KS & SSR, 1958 has been made applicable to the selection of District Judges. Therefore, all the other categories of persons enumerated in Rule 10(e) of the said rules as persons entitled to relaxation of age, have been specifically excluded by the rules. The petitioner belongs to one such category that has been WPC24827/2011 3 excluded. In view of the above, it is contended that only Rule 10(c) is applicable to the selection process in question. With respect to Rule 7 it is pointed out that the provisions therein would apply only in cases where no specific provisions are made in the Special Rules, as is evident from Rule 7 itself. Therefore, he prays for dismissal of the writ petition. 5. I have heard learned senior Govt. Pleader also. 6. It is not in dispute that the petitioner is aged 49 years and is above the age limit prescribed by Ext.P1. The only question that requires to be considered is whether the petitioner is entitled to relaxation of his age, as contended. As per Ext.P4 Notification, under Note (1) to clause 3 it is specifically provided that for relaxation of age limit, the provisions in Sub Rule (c) of Rule 10 of KS and SSR, 1958 shall apply. Note (2) further clarifies that save as otherwise provided, eligibility shall be determined with reference to the last date fixed for receipt of the applications. 7. Rule 3(2) of the Special Rules reads as follows:- “A candidate for appointment under Rule 2(c)(iii) shall satisfy the following general conditions namely:- (a) He shall be a citizen of Indian Union, (b) He shall have attained the age of 35 years and shall not have completed 45 years of age on the first WPC24827/2011 4 day of January of the year in which applications for appointment are invited.” Provided that the provisions in sub-rule (c) of Rule 10 of the Kerala State and Subordinate Service Rules, 1958 raising the upper age limit in the case of candidates belonging to Scheduled Castes, adult members of Scheduled Castes and their children when such adult members are converted to other religions, Scheduled Tribes and Other Backward Classes shall be applicable to such candidates for appointment under Rule (2)(c)(iii). (c) He shall be of a good character. (d) He shall be of sound health and active habits and free from any bodily defect or infirmity which renders him unfit for such appointment, (e) He shall not have more than one wife on living unless exempted by the Government on special grounds, (f) He shall be a practising Advocate and should have so practised for a period of not less than 7 years.” 8. A reading of the above provision makes it clear that a candidate for appointment to the post of a District Judge has to satisfy all the qualifications prescribed above, which include the WPC24827/2011 5 limitation as to the age of the person. The proviso makes it clear that it is only in the situations contemplated therein that relaxation of age is permissible. It is trite that, when a prohibition is enacted by a provision and an exception is carved out by employing a proviso, the said proviso is to be construed strictly. The prohibition operates to the exclusion of all other exceptions. The proviso makes it clear beyond any doubt that no other mode of relaxation is permissible under the Special Rules. In view of the wording of the proviso, it is clear that the petitioner is not entitled to the age relaxation that is contemplated by Rule 10(e) of Part II KS & SSR. 9. Counsel for the petitioner has placed reliance on Rule 7, which is extracted below for convenience of reference:- “7. Pay, Allowances and other conditions of service—Rules relating to pay, allowances and other conditions of service applicable to Government servants in general, not inconsistent with the directions of the Honourable Supreme Court in the All India Judges Association's Case, shall where no specific provisions are made in these rules, apply to members of this service.” (emphasis supplied) The above provision has no application to the situation at hand for the reason that it does not apply where qualifications have been prescribed in accordance with the rules as in Ext.P4 notification. WPC24827/2011 6 Further, Rule 7 makes it clear that the rules relating to pay, allowances and other conditions of services applicable to Government services in general, are to apply only in cases where they are not inconsistent with the directions of the Honourable Supreme Court in All India Judges Association's case and where no specific provisions are made in these rules. In the present case, since specific provisions have been made in these Rules, Rule 7 has no application. 10. The above being the position, the petitioner is not entitled to the age relaxation that is sought for. Consequently, rejection of his application is perfectly justified. I do not find any infirmity in the proceedings evidenced by Exts.P7 and P8. The writ petition fails and is accordingly dismissed. K. SURENDRA MOHAN Judge jj