In a surprising volte-face, the Madhya Pradesh High Court has quashed the termination of two additional district judges for violating the state government’s two-child norm

~By Rakesh Dixit in Bhopal

Last year, Madhya Pradesh was in the news for a two-child rule which state government employees had to follow. As luck would have it, two additional district judges (ADJs) were found to have flouted this rule and their services were terminated within two months of their posting. India Legal had carried the story in its October 9 issue. However, the Madhya Pradesh High Court, citing a lapse in its own recruitment process, has now quashed the termination of these two ADJs.

Practising advocates Ashraf Ali and Manoj Kumar had appeared in the direct recruitment examination and been appointed ADJs at Jabalpur and Gwalior, respectively, in April 2017. On September 7, the High Court terminated their services after finding that Ali had three and Kumar five children. The dismissals were based on the Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 1994, that disqualify candidates having more than two children, one of whom was born after January 26, 2001.

NOT FAIR

The two ADJs moved the High Court and their petitions were clubbed together. They argued that the termination orders had been passed by the Madhya Pradesh Department of Law and Legislative Affairs without giving them hearings. On March 14, the High Court directed that the petitioners be reinstated and granted all consequential benefits, except salary, from the date of termination till the date of reinstatement.

The petitioners argued that the application form did not seek information about their children. The counsel for the High Court argued that the advertisement dated November 23, 2015, specifically mentioned in clause 3 (a) of the MP Civil Services (General Conditions of Service) Rules, 1961, that a candidate who did not fulfil the provisions was not qualified for the post.

The counsel for the High Court submitted that the recruiting authority was always entitled to specify provisions of eligibility at the time of recruitment and that the persons who participate in the process without fulfilling such criteria are not entitled to challenge the eligibility at a subsequent stage.

However, a division bench of Chief Justice Hemant Gupta and Justice HP Singh held that it was mandatory for the High Court to seek information about the number of children in the application form itself. The eligibility of the candidate has to be checked before a candidate is permitted to appear in the examination and take part in the selection process. “Once the petitioners have been subjected to selection and subsequent appointment then to cancel the candidature is unreasonable action on part of the high court,” the bench held.

The bench has given the state government a month to comply with the order. Besides the two-child norm, the rules also disqualify persons having more than one living spouse for appointment by direct recruitment.

The administrative committee of the Madhya Pradesh High Court had recommended termination of service of the two ADJs to the full bench of the Madhya Pradesh High Court headed by Chief Justice Gupta. The Chief Justice then headed the bench that set aside the court’s dismissal order.

SERVICES TERMINATED

Accepting the committee’s decision in its July 26 meeting, the full bench of the Court recommended that the services of the two trainee judges be terminated under Section 9C of the Madhya Pradesh Higher Judicial Service (Recruitment and Condition of Service) Rules, 1994.

In 2000, the rules were amended to bring in the two-child policy. The amended Rule 6(5) states: “A candidate shall be eligible for appointment only when, as per amendment brought about by the Government of Rule 6 of Madhya Pradesh Civil Services (General Conditions of Service) Rules 1961, dated 10-03-2000.

(a) A male candidate is not married before 21 and a female candidate before 18 years of age

(b) The candidate doesn’t have a third offspring after 26th of January 2001.”

Subsequently, the state government issued a gazette notification in this regard as well.

This was the first time that the Madhya Pradesh government had dismissed judges for flouting the two-child policy since it came into force. Although the administrative committee had recommended the judges’ termination in July, the state government’s law department was dilly-dallying over accepting the recommendation. It is believed that action against them was taken swiftly after a suspended additional district judge, RK Srivas, wrote a letter to the president of India on September 10. In his letter, Srivas alleged that at least 15 additional district judges in Madhya Pradesh had flouted the two-child policy, but neither the MP High Court nor the state government had taken action against them.

Srivas created quite a sensation in the Madhya Pradesh High Court bench in Jabalpur by sitting on dharna in front of the premises in July. He alleged that the Court was victimising him by transferring him frequently for highlighting injustice in the judiciary. The High Court subsequently suspended him for gross indiscipline.

Previous cases of termination of government employees for violating the two-child policy pertained to the lower judiciary. Citing the rule, district and sessions judge Anjuli Palo sacked three peons—Kalyan Singh Thakur, Chanda Thakur and Lalchand Burman—on June 23, 2016.

The three were posted at Damoh district court and Palo sacked them citing Section 6(6) of the MP Civil Services Rules, 1961.

Such ham handed ways of tackling the population problem obviously don’t work.