LAKSHMANAN, CJ. - (1.) THE prayer in the writ petition reads thus:- i) the respondent be directed to accept the application form of the petitioner for recruitment to Rajasthan Judicial Services and to allow her to appear in the Rajasthan Judicial Service Competetive Examination-2001 being conducted by Rajasthan Public Service Commission, Ajmer irrespective of the fact that petitioner will cross the age of 35 years on 1. 1. 2002; ii) the respondent be directed to suitably amend the Rajasthan Judicial Service Rules, 1955 so as to make the Notification No. F. 7 (2) DOP/a-II/84 G. S. R. 40 dated 18. 12. 87 issued by the Governor of Rajasthan in exercise of its powers under Article 309 providing for age relaxation of widow and divorced women; iii) the respondent be directed to amend the Rajasthan Judicial Service Rules, 1955 so as to provide age relaxation of 5 years in case of women candidates; iv) such other order as your lordship deem proper may also be passed in favour of the petitioner.
(2.) THE petitioner is a divorcee whose marriage was dissolved under Sec. 13 of the Hindu Marriage Act by the Judge, Family Court, Jaipur on 14. 7. 97. THE petitioner was born on 12. 5. 1964, in proof of it, the petitioner has filed the marks sheet of Secondary School Examination as Annexure-1. THE petitioner was enrolled as an advocate on 26. 2. 95 on the Rolls of the Bar Council of Rajasthan. Her enrolment number as an Advocate is 18312/95 on the rolls of the Bar Council of Rajasthan. That the Rajasthan Public Service Commission, Ajmer (for short the RPSC') issued an advertisement inviting applications for appointment on the post of Munsif & Judicial Magistrate on 17. 5. 2001. According to the advertisement there were following vacant posts which are required to be fill in by the RPSC by examination and interview: Total No of Posts 116 General posts Reserved Posts S. C. S. T. O. B. C. M F M F M F M F 48 11 15 4 11 3 19 5 The advertisement provides for qualification and age limits. According to the qualification any candidate who has obtained a recognised degree of law and has practiced as an advocate for three years to qualify to apply for the post of Munsif and Judicial Magistrate. With regard to the age it was provided that the candidate must have not attained the age of 35 years on 1. 1. 2002. It is provided that there will be age relaxation of five years for the candidates belonging to SC/st. There were also certain relaxation of age for certain categories of candidates. A photo copy of the advertisement dated 17. 5. 2001 has also been submitted and marked as Annexure-3. This advertisement has been issued under the Rajasthan Judicial Service Rules, 1955 (hereinafter referred to as `the RJS Rules' ). Rule 10 of the RJS Rules, which provides for age, reads as under:- "10. Age:- A candidate for recruitment to the service must not have attained the age of 35 years on the first day of January next following the date of commencement of examination by the commission for recruitment to the Service: Provided: (i) that barring the first examination to be held under the provisions of these rules, if a candidate would have been entitled in respect of his age to appear at an examination in any year in which no such examination was held, he shall be deemed to be entitled in respect of his age to appear at the next following examination; (ii) provided further that for the examination to be held under the provisions of these Rules in the year 1962, the upper age-limit shall be 35 years; (iii) that in respect of the first examination to be held under the provisions of these rules the upper age-limit shall be 32 years; and (iv) that the upper age limit for a candidate of a Scheduled Caste or of a Scheduled Tribe shall be deemed to have been raised by five years; (v) that the upper age-limit for the reservists, namely the defence service personnel transferred to the reserve, shall be 50 years; (vi) that the upper age-limit for the political sufferer shall be 40 years till the 31. 12. 1964 Explanation: The expression `political sufferer' for the purpose of this rule shall have the meaning assigned to it under clause (iii) of Rule 2 of the Rajasthan Political Sufferer Aid Rules, 1959, published in part IV (c) of Rajasthan Gazetted, dated 18 June, 1959. (vii) That the upper age-limit mentioned above shall be relaxable by a period equal to the service rendered in the N. C. C. in the case of cadet Instructors and if the resultant age does not exceed the prescribed maximum age limit by more than three years, they shall be deemed to be within the prescribed age- limit; (viii) Provided for that any candidate who is released Commissioned Officer as defined in cl. (e) of sub-rule (1) of Rule 3 of the Rajasthan Civil Service (Recruitment of Released Emergency Commissioned and Short Service Commissioned Officers) Rules, 1968, and who had not attained the age of 32 years when he was recruited in the Armed Force of the Union shall be eligible to appear in the examination to be held under the provisions of these rules in the years 1970, 1971 and 1972 if he fulfills the qualifications laid down in Rule 11. (ix) Notwithstanding anything contained contrary in these Rules, in the case of persons serving in connection with the affairs of the State in substantive capacity, the upper age limit shall be 40 years. " No relaxation of age has been given to the women candidates particularly widow and divorced ladies. According to the petitioner, although she fulfills the educational qualification but she will be crossing 35 years of age by 1. 1. 2002, as such she is not eligible to apply for the post. Since the petitioner has submitted her application form in the prescribed form to appear in the RJS Competetive Examination 2001, but in view of the age limit of 35 years, the petitioner states that the concerned authority will not allow her the appear in the examination. Aggrieved by the age limit mentioned in the advertisement and Rule 10 of the Rules, the petitioner through her advocate sent a notice on 16. 7. 2001 to the respondents to grant relaxation of age to the petitioner for recruitment in Rajasthan Judicial Services. The notice was duly received by the respondents but no action has been taken on the notice of the petitioner so far. According to the petitioner, the action of the respondents in not providing age relaxation for women particularly divorcee and widow in Judicial Services is highly arbitrary and discriminatory. The petitioner, therefore, filed the above writ petition with the reliefs prayed for and extracted above.
(3.) WE have heard, Shri A. K. Bhandari, Sr. Advocate and ably assisted by Shri M. M. Ranjan, Advocate. Our attention was drawn to Rule 10 (Age) and Rule 29 (Leave, Allowances and Pension etc. ). Our attention was also invited to Rule 8 of the Rajasthan Service Rules, which runs as under:- "8. Age on first appointment:- (1) Unless otherwise provided in the rules or the orders of the Government governing recruitment to any post or class of posts the minimum and the maximum age for entry into Government service shall be 16 (+33 years) respectively. Exceptions 1: Minors or persons who have not attained the age of 18 years should not be appointed to posts for which security is required; 2.Unless otherwise provided in the rules governing recruitment to particular post/service, the upper age limit in case of women candidates for entry into Government service shall be+40 years. Shri A. K. Bhandari at the time of hearing raised and argued the following points for consideration:- " (a) the action of the respondents in not providing age relaxation of five years for women particularly divorcee and widow in Judicial Services is violative of Articles 14 and 16 of the Constitution. While the women are entitled to age relaxation of five years in all the services of Rajasthan, there is no reason whatsoever why such relaxation could not be given to similarly situated women candidates applying for Judicial Services; (b) that such age relaxation has been provided under the Rajasthan Administrative Service Rules, 1954, Rajasthan Police Service Rules, Rajasthan Medical Service (Collegiate Branch) Rules, Rajasthan Medical & Health Service Rules, Rajasthan Legal State and Subordinate Service Rules, Rajasthan Vidhi Rachna Service Rules, Rajasthan Education Service (Collegiate Branch) Rules, Rajasthan Tehsildar Service Rules and also in Subordinate Service Rules. The women candidates applying for Rajasthan Judicial Services are being unfavourably treated qua the similarly situated women candidates; (c) that Article 16 (1) of the Constitution of India contemplates that there shall be equality of opportunity for all citizens in matter relating to employment or appointment to any office under the State. It may further to be noted that women candidates applying for service under the Rajasthan Judicial Services, can not be considered inferior to the candidates serving under Rajasthan Administrative Services. Therefore, the Rajasthan Judicial Service Rules in way imposes an arbitrary ban upon the appointment of women candidates beyond the age of 35 years; (d) that Rule 8 of the RSR provides for age on 1st appointment. The relevant rule has already been extracted above. However, the RJS Rules do not provide any age limit for women candidates for entry into Judicial Service; (e) that Rule 29 of the RJS Rules, reads as follows:- "29. Leave, Allowances, Pensions etc. Except as otherwise provided in these rules, the pay, allowances, pensions, leave and other conditions of service of the members of the Services shall be regulated by: 1. The Rajasthan Travelling Allowance Rules, 1949. 2. The Rajasthan Civil Services (Unification of Pay Scales) Rules, 1950; 3. The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1951; 4. The Rajasthan Service Rules, 1951, and 5.Any other rules made under the proviso to Article 309 of the Constitution and for the time being in force. " By virtue of Rule 29 of RJS Rules, the Rajasthan Service Rules 1951 have been made applicable to the Judicial Services. Consequently, by virtue of Rule 8 of RSR, the petitioner is entitled to apply for recruitment in Rajasthan Judicial Service, even if the petitioner has crossed 35 years of age as on 1. 1. 2002. (f) that under Article 15 (2) of the Constitution of India, the State can make special provisions for women; (g) that under Article 38 of the Constitution of India, it is the duty of the State to secure a social order for promotion of welfare of the people. Under Article 39 the State shall direct its policy towards securing that the citizen men and women equally have the right to an adequate means of livelihood and under Article 46 it is the duty of the State to promote weaker section of the people as the women have always been treated as weaker section of the society; (h) that the RJS Rules and advertisement provide that all those candidates who are substantively appointed in the State Services will have an age relaxation up to 40 years. Thus it is argued by Shri Bhandari that for a woman Govt. Servant holding a substantive post the age relaxation will be up to 40 years while a woman candidate who is not in service, the age limit will be only 35 years. This is on the face of it is discriminatory; (i) while there is relaxation of age for women candidates belonging to SC/st there is no such relaxation for women in general. All the women belonged to weaker section of the society irrespective of any caste or creed and all must be treated alike. There should be no discrimination between one woman and another in the matter of public employment". Concluding his argument, Shri Bhandari submits that the appointing authority as well as the RPSC have created two classes in respect of benefit of maximum age. The women candidates of SC/st and OBC form a single class as they all have been given benefit of reservation. The discrimination which has been made while giving benefit of age to the candidates of SC/st qua the women candidates is without any reasonable justification and that the discrimination which has been created by the respondents is violative of Articles 14 and 16 of the Constitution as there cannot be two yardsticks for adjudging the eligibility of the candidates who form the same group and in this case, the women candidates. Mr. Bhandari made further submission that the real purpose of giving benefit to the women candidates is taken away by not extending benefit of age while calculating the maximum age. Such women candidates suffer from several handicaps qua the general candidates. The appointing authority considering all these aspects of socially economic backward classes, decided to uplift the women candidates. The outstanding of such candidates at the threshold is writ large in the instant case where they are not given benefit in age relaxation. The real purpose of reservation is taken away by the respondents at the initial stage while prescribing the norms of eligibility in respect of age. Winding up his arguments arguments, Shri Bhandari in his concluding remarks submitted that while there is age relaxation of five years for women candidates in various Rajasthan Service Rules, there is no such relaxation for the women candidates applying for the Rajasthan Judicial Services, which according to him is, highly unreasonable and arbitrary. ;