# Nitesh Kumar Srivastava v. High Court of Judicature at Allahabad and Ors

- **Citation:** (2013) 2 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-06-04
- **Case number:** Civil Misc. Writ Petition No. 32113 of 2013
- **Bench:** Arun Tandon, Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitesh-kumar-srivastava-v-high-court-of-judicature-at-allahabad-and-ors-42573
- **Pages:** 7

## Headnote

Constitution of India-Art. 226- Upper age
limit-appointment of Civil Judge junior
division-petitioner claimed parity of U.P.
Recruitment to service (Age limit) (10th
Amendment Rules 2012)-by which upper
age limit extended from 35 to 40 Yearsheld-Rule 10 of Rule 2001 framed with
2 All] Nitesh Kumar Srivastava Vs. High Court of Judicature at Allahabad and Ors.
721
discussion of High Court-providing upper
age limit as 35 years-argument of petitioner
misconceived-petition dismissed.

Held: Para-23
The contentions raised on behalf of the
petitioners, that once the Rules of 2001
have been framed in consultation with the
High Court it is not necessary to have any
further consultation with the High Court
while making amendments therein, is also
wholly misconceived. The procedure to be
followed in the matter of framing of the
original rules will have to be adopted while
making any amendments in the same rules.

Case Law discussed:
AIR 1967 SC 1581; AIR 1992 SC 81; (2000) 4
SCC 640

## Text

720 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
mentioned in Section 2 (e) of the Act of
1970 can only be advanced in Ayurveda,
Siddha and Unani and not Alopathic
medicine. By virtue of Section 15 (2) (b)
of the Indian Medical Council Act, 1956
the
persons
having
the
prescribed
qualifications included in the schedules
alone are eligible to practice modern
medicine. The words "modern medicine"
would be referable to the modern
advances made in the respective fields of
Ayurveda, Siddha and Unani. The Kerela
High Court followed Mukhtar Chand v.
State of Punjab AIR 1999 SC 468. In
support of the observations made by it
and reiterated that modern advances
mentioned in Section 2 (3) of the Act of
1970 cannot be interpreted to mean
Allopathic Medicines.

11. In D.K. Joshi vs. State of UP and
others (2000) 5 SCC 80; Dr. Ravindra
Kumar Goel and others vs. State of UP
and others 2004 (2) ESC (All) (DB) 976;
Provincial Medical Services Association,
UP and others vs. State of UP and others
2004 ESC (5)1; Dr. Behboob Alam vs.
State of UP and others 2001 (2) JIC 744
(All); Poonam Verma vs. Ashwin Patel
and others (1996) 4 SSC 332 and in
Bhanwar Kanwar vs. R.K. Gupta and
another (2013) 4 SCC 252 the Supreme
court and High Courts including this Court
have held that the doctors enrolled in their
branch of medicines should not be allowed
to practice in any other branch. Such
practice would amount to quackery and for
which they can be prosecuted and their
registration is liable to be cancelled. A
doctor qualified in one branch of medicine
cannot be allowed to practice the other
branch of medicine of which he has not
acquired knowledge.

12. It is difficult for us to believe that
the petitioners, who obtained degrees in
Ayurveda medicine in the years 19821983,have
acquiredknowledge
of
Allopathic Medicine. It will be extremely
dangerous to allow them to prescribe and
to treat human beings with Allopathic
medicines. They have a right to practice
in their own branch of medicine. The
transgression into other branches of
medicine proposed by petitioners is not
permissible to them, in law.

13. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.06.2013

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE MANOJ KUMAR GUPTA, J.

Civil Misc. Writ Petition No. 32249 Of 2013
with
Civil Misc. Writ Petition No. 32113 of 2013
with
Civil Misc. Writ. Petition No. 32262 of 2013

Nitesh Kumar Srivastava
 ...Petitioner
Versus
High Court of Judicature at Allahabad
and Ors. ...Respondents

Counsel for the Petitioner:
Sri Nitesh Kumar Srivastava
Sri Manvendra Nath Singh

Counsel for the Respondents:
C.S.C., Sri V.P. Mathur
Sri Yashwant Varma, Sri Manish Goyal
Sri A.K. Sinha

Constitution of India-Art. 226- Upper age
limit-appointment of Civil Judge junior
division-petitioner claimed parity of U.P.
Recruitment to service (Age limit) (10th
Amendment Rules 2012)-by which upper
age limit extended from 35 to 40 Yearsheld-Rule 10 of Rule 2001 framed with
2 All] Nitesh Kumar Srivastava Vs. High Court of Judicature at Allahabad and Ors.
721
discussion of High Court-providing upper
age limit as 35 years-argument of petitioner
misconceived-petition dismissed.

Held: Para-23
The contentions raised on behalf of the
petitioners, that once the Rules of 2001
have been framed in consultation with the
High Court it is not necessary to have any
further consultation with the High Court
while making amendments therein, is also
wholly misconceived. The procedure to be
followed in the matter of framing of the
original rules will have to be adopted while
making any amendments in the same rules.

Case Law discussed:
AIR 1967 SC 1581; AIR 1992 SC 81; (2000) 4
SCC 640

(Delivered by Hon'ble Arun Tandon, J.)

1. These three writ petitions have
been filed by 79 petitioners. All these
petitions raise common questions of fact
and law. Therefore, they have been
clubbed together and are being decided by
means of this common judgment.

2. The petitioners before this Court
are advocates. They are aggrieved by the
advertisement published by the Public
Service
Commission,
U.P.,
being
Advertisement No. A-2/E-1/2013 dated
23.05.2013 for recruitment to the Judicial
Service, Civil Judge (Junior Division) in
the State of Uttar Pradesh. Petitioners in
particular seek quashing of the conditions
mentioned in the advertisement which
prescribed the outer age limit for making
of the application as 35 years as on 1st
day of July next following the year of
advertisement i.e. 01st July, 2014.

3. All the petitioners before this
Court would be more than 35 years on
01st July, 2014. Therefore, they are
ineligible to apply in response to the
advertisement published by the Public
Service Commission. The advertisement
itself records that the U.P. Recruitment to
Service (Age Limit) (Tenth Amendment)
Rules, 2012 issued by the State of Uttar
Pradesh with regard to increase in the
upper age limit from 35 years to 40 years
have not been adopted by the High Court.

4. According to the petitioners (a)
The
Rules
framed
by
the
State
Government, known as U.P. Recruitment
to
Service
(Age
Limit)
(Tenth
Amendment) Rules, 2012 (hereinafter
referred to as Rules, 2012) apply
automatically in the matter of recruitment
to Judicial Service in the State of Uttar
Pradesh on simple reading of the same.
These Rules, 2012 have been framed
under Article 309 of the Constitution of
India. (b) The High Court has not acted
fairly in not adopting the said Rules, 2012
and thereby creating a different class of
Government Service for Judicial Officers.
(c) Under clause 10 of The Uttar Pradesh
Judicial Service Rules, 2001 (hereinafter
referred to as Rules, 2001) there is no
mention of any further consultation with
the High Court in the matter of fixation of
outer age limit, while in other clauses
such consultation has been provided.
Therefore, while increasing maximum age
limit as per the Rules, 2012 no
consultation with the High Court was
required. The Rules, 2012 have over
ridding effect to rules 4 and 6 of Rules
2001 and (d) Rules, 2012 are special law
they prevail over the general rules framed
by the High Court. Judicial Service is also
a State Service. The special law which has
been framed for the State Service shall
also apply to the Judicial Service.

5. Broadly speaking according to the
petitioners when the outer age limit has
722 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
been extended in respect of other services
of the State of U.P., there is little or no
justification for the High Court to not to
agree to extend the upper age limit in
respect of the applicants to be considered
for appointment as Civil Judge (Junior
Division).

6. Counsel for the petitioners has
placed reliance upon the judgments of the
Apex Court in the case of Northern
India Caterers (Private) Ltd. and
another v. State of Punjab and another;
AIR 1967 SC 1581 and R.S. Raghunath
v. State of Karnataka and another; AIR
1992 SC 81.

7. The contentions raised on behalf
of
the
petitioners
are
wholly
misconceived.

8. This Court may record that the
power to frame rules in the matter of
recruitment of judicial officers within the
State Judiciary is conferred under Article
234 of the Constitution of India. Article
234 reads as follows:

"234. Recruitment of persons other
than District Judges to judicial service.-
Appointments of persons other than
district judges to the judicial service of a
State shall be made by the Governor of
the State in accordance with rules made
by him in that behalf after consultation
with the State Public Service Commission
and with the High Court exercising
jurisdiction in relation to such State."

9. From a simple reading of the
Article 234 it would be seen that
recruitment is to be made in accordance
with the rules framed by the Governor in
consultation with the State Public Service
Commission and the High Court only.
Meaning thereby that no rules in respect
of recruitment of judicial officers can take
effect
unless
they
are
framed
in
consultation with the High Court.

10. From the records of the present
writ petitions it is apparently clear that the
Governor has notified rules under Article
234 of the Constitution of India for the
purposes of recruitment to the judicial
services of the State of U.P., known as
Rules, 2001. Rule 10 (as amended in the
year 2003) provides that a candidate for
direct recruitment to the service must
have attained the age of 22 years and must
not have attained the age of more than 35
years on the first day of January next
following
the
year
in
which
the
notification for holding the examination
by the Commission inviting applications,
is published. It is not in dispute that Rule
10, as amended under notification dated
19th March, 2003, was framed in
consultation with the High Court.

11. So far as Rules, 2012 are
concerned, suffice is to record that the same
has been notified by the Governor in
exercise of powers under Article 309
proviso of the Constitution of India. A copy
of the amended Rules 2012 is enclosed as
Annexure-1 to the present petition. Article
309 confers a power upon the Governor to
frame rules in respect of the State Services.
Article 309 reads as follows:

"309. Recruitment and conditions
of service of persons serving the Union
or a State.-Subject to the provisions of
this Constitution, Acts of the appropriate
Legislature may regulate the recruitment,
and conditions of service of persons
appointed, to public services and posts in
connection with the affairs of the Union
or of any State:
2 All] Nitesh Kumar Srivastava Vs. High Court of Judicature at Allahabad and Ors.
723

Provided that it shall be competent
for the President or such person as he
may direct in the case of services and
posts in connection with the affairs of the
Union, and for the Governor of a State or
such person as he may direct in the case
of services and posts in connection with
the affairs of the State, to make rules
regulating the recruitment, and the
conditions
of
service
of
persons
appointed, to such services and posts until
provision in that behalf is made by or
under
an
Act
of
the
appropriate
Legislature under this article, and any
rules so made shall have effect subject to
the provisions of any such Act."

12. So far as the rules framed by the
State Government under Article 309 of
the Constitution of India for recruitment
to State services known as Rules, 2012
are concerned, they do not ipso facto
become applicable to the judicial service
of the State of U.P. nor stand incorporated
in the Rules, 2001 framed in consultation
with the High Court.

13. The Constitution Bench of the
Apex Court in the case of State of Bihar
and another vs. Bal Mukund Sah and
others;
(2000)
4
SCC
640,
after
considering
the
entire
constitutional
scheme and the law laid down on the
subject under various judgments of the
Apex Court, in paragraph 20 has held as
follows:

"20. .........

It becomes, therefore, obvious that
the framers of the Constitution separately
dealt with "Judicial Services" of the State
and made exclusive provisions regarding
recruitment to the posts of District Judges
and other civil judicial posts inferior to
the posts of the District Judge. Thus these
provisions found entirely in a different
part of the Constitution stand on their
own and quite independent of Part XIV
dealing with services in general under the
"State". Therefore, Article 309, which, on
its express terms, is made subject to other
provisions of the Constitution, does get
circumscribed to the extent to which from
its general field of operation is carved out
a separate and exclusive field for
operation by the relevant provisions of
articles dealing with the Subordinate
Judiciary as found in Chapter VI of Part
VI of the Constitution to which we will
make further reference at an appropriate
stage in the latter part of this judgment."

14. In paragraph 36 the Constitution
Bench went out to hold as follows:

"36. It becomes, therefore, obvious that
no recruitment to the post of a District Judge
can be made by the Governor without
recommendation from the High Court.
Similarly, appointments to the Subordinate
Judiciary at grass-root level also cannot be
made by the Governor save and except
according to the rules framed by him min
consultation with the High Court and the
Public Service Commission. Any statutory
provision bypassing consultation with the
High Court and laying down a statutory fiat
as it tried to be done by enactment of Section
4 by the Bihar Legislature has got to be held
to be in direct conflict with the complete code
regarding recruitment and appointment to
the posts of the District Judiciary and the
Subordinate Judiciary as permitted and
envisaged by Articles 233 and and 234 of the
Constitution. The impugned Section 4,
therefore, cannot operate in the clearly
earmarked and forbidden field for the State
Legislature so far as the topic of recruitment
to the District Judiciary and the Subordinate
Judiciary is concerned. That field is carved
724 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
out and taken out from the operation of the
general sweep of Article 309."

15. Thereafter, in paragraph 51 the
Constitution Bench has held as follows:

"51. As seen earlier, consultation
with the High Court as envisaged by
Article
234
is
for
fructifying
the
constitutional mandate of preserving the
independence of the Judiciary, which is
its basic structure. The Public Service
Commissioner has no such constitutional
imperative to be fulfilled. The scope of the
examining body's consultation can never
be equated with that of consultation with
the appointing body whose agent is the
former. It is also pertinent to note that the
essence
of
consultation
is
the
communication of a genuine invitation to
give advice and a genuine consideration
of that advice which in turn depends on
sufficient information and time being
given to the party concerned to enable it
to tender useful advice. It is difficult to
appreciate how the Governor while
consulting the Public Service Commission
before
promulgating
the
rules
of
recruitment under Article 234 has to
solicit similar type of advice as he would
solicit from the High Court on due
consultation. The advice which in the
process of consultation can be tendered
by the Public Service Commission will
confine
itself
to
the
constitutional
requirements of Article 320. They are
entirely different from the nature of
consultation and advice to be solicited
from the High Court which is having full
control over the Subordinate Judiciary
under Article 235 of the Constitution and
is directly concerned with the drafting of
efficient judicial appointments so that
appropriate material will be available to
it thorough the process of section both at
the grass-root level and at the apex level
of the District Judiciary. Consultation,
keeping in view the role of the High Court
under Article 234 read with Article 235,
stands on an entirely different footing as
compared to the consultation with the
Public Service Commission which has to
discharge its functions of an entirely
different type as envisaged by Article 320
of the Constitution."

16. In paragraph 58 of the
Constitution Bench judgment it was held
as follows:

"58. ........

.........Any independent outside inroad
on this exercise by legislative enactment
by the State Legislature which would not
require consultation with an expert
agency like the High Court would
necessarily fall foul on the touchstone of
the Constitutional scheme envisaging
insulation of judicial appointments from
interference
by
outside
agencies,
bypassing the High Court, whether being
the Governor or for that matter Council
of
Ministers
advising
him
or
the
Legislature. For judicial appointments the
real and efficacious advice contemplated
to be given to the Governor while framing
rules under Article 234 or for making
appointments on the recommendations of
the High Court under Article 233
emanates only from the High Court which
forms the bed- rock and very soul of these
exercises. It is axiomatic that the High
Court, which is the real expert body in the
field in which vests the control over
Subordinate Judiciary, has a pivotal role
to play in the recruitments of judicial
officers whose working has to be
thereafter controlled by it under Article
235 once they join the Judicial Service
after undergoing filtering process at the
2 All] Nitesh Kumar Srivastava Vs. High Court of Judicature at Allahabad and Ors.
725
relevant entry points. .................This
completely insulated scheme as envisaged
by the founders of the Constitution cannot
be tinkered with by any outside agency
dehors the permissible exercise envisaged
by the twin Articles 233 and 234. ..........."

17. It is, therefore, no more res
integra that any rules framed by the
Governor in exercise of power under
Section 309 without consultation to the
High Court in the matter of recruitment to
the Judicial Service qua which rules are to
be framed mandatorily in consultation
with the High Court would be contrary to
the Constitutional scheme.

18. The Apex Court in the case of
State of Bihar (supra), while faced with
the similar situation in the matter of
reservation
being
applied
under
Legislative Act of State of Bihar, which
on a simple reading of statutory provision
had covered the post and method of
recruitment to Judicial services, has held
that the statutory provisions framed
without consultation with the High Court
have to be read down by holding that the
provisions shall not apply for regulating
the recruitment and appointment to the
cadre of District Judge as well as to the
cadre of Judiciary subordinate to the
District Judge. Such appointment shall be
strictly governed by the rules framed
under Article 234 of the Constitution of
India in consultation with the High Court.
Reference- paragraph 62.

19. In the facts of the case, on a
simple reading of the Rules, 2012 it will
be seen that the rules have been framed in
the widest possible term and would
include the subordinate Judicial services
also. However, since the Rules, 2012 have
not been framed in consultation with the
High Court and further since the High
Court on the administrative side in its
meeting held on 07th May, 2013 had
resolved
not
to
adopt/accept
the
enhancement in the outer age. It has to be
held that these Rules of 2012 would have
no application so far as recruitment to
subordinate judicial services under the
advertisement in question are concerned,
any application of the Rules of 2012 to
Judicial Services would be in violation of
the Constitutional scheme, as has been
explained by the Constitution Bench of
the Apex Court in the case of State of
Bihar (supra).

20. Having reached the aforesaid
conclusion, it will be seen that all other
issues raised on behalf of the petitioners
stand answered by the law laid down by
the Constitution Bench in the case of
State of Bihar (supra). It is needless to
emphasis that the Hoh'ble Supreme Court
itself has clarified that the Judicial
services form a class separate from the
other services under the State, covered by
Article 309 of the Constitution of India.
Judicial appointments have been taken out
from the field of operation of general
sweep of the services covered by Article
309.

21.

Therefore,
the
plea
of
discrimination,
as
raised
by
the
petitioners, has no substance as the
Judicial services cannot be clubbed with
other services under the State, they form
two different classes.

22. It may be recorded that it was
within the discretion of the High Court on
the administrative side to have accepted
the enhancement of outer age limit in the
matter or recruitment to Judicial service.
The High Court has taken a conscious
decision not to extend the maximum age
726 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
from 35 to 40 years. It cannot be said that
the High Court has acted arbitrarily or has
created a different class of Services for
the Subordinate Judicial Officers.

23. The contentions raised on behalf
of the petitioners, that once the Rules of
2001 have been framed in consultation
with the High Court it is not necessary to
have any further consultation with the
High Court while making amendments
therein, is also wholly misconceived. The
procedure to be followed in the matter of
framing of the original rules will have to
be
adopted
while
making
any
amendments in the same rules.

24. The contention that the Rules of
2012 have the overriding effect is also
based on complete misreading of the law
as has been explained by the Constitution
Bench of this Court in the case of State of
Bihar (supra).

25. Now turning to the judgements
relied upon by the counsel for the
petitioners.

26. In the case of Northern India
Caterers (Private) Ltd. and another v.
State of Punjab and another it has been
laid down that repeal by implication is not
generally favoured by the Court. The well
established Rule of construction is that
when the later enactment is worded in
affirmative terms without any negative it
does not impliedly repeal the earlier.

27. In our opinion the judgment has
no application on the legal issues involved
in the facts of the case.

28. In the case of R.S. Raghunath
(supra) the Apex Court has laid down that in
absence of any express repeal of special rule,
repeal by implication cannot be inferred. There
can be no dispute with regard to the legal
proposition so laid down but the principle has
no application in the facts of the case. The
Judicial service as covered by the recruitment
rules framed under Article 234 of the
Constitution of India stand outside the field of
operation of the State Services covered by
Article 309. The judgment has therefore no
application in the facts of the case.

29. For the reasons recorded above,
this Court finds no substance in the
present writ petitions. All three petitions
are accordingly dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2013

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI, J.

Civil Misc. Writ Petition No. 32962 Of 2000

Smt. Rekha Chaturvedi & Anr .Petitioners
Versus
Chief Controlling Revenue Authority And
Anr.
 ...Respondents

Counsel for the Petitioners:
Sri R.K. Porwal

Counsel for the Respondents:
C.S.C.

U.P. Stamp (Valuation of property) Rules
1997- Sale deed executed on 16.02.1993rule came into force on 15.07.1997-having
no applicability with retrospective effectwhen
land
purchased-agricultural
landwithout declaration under Section 143 of
U.P.Z.A.L.R Act-can not be treated as
Commercial
or
residential
plot-future
potentiality can not be taken into considered
for stamp duty purpose.

Held:Para-9