Full Judgment Text
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CASE NO.:
Appeal (civil) 1867 of 2006
PETITIONER:
Malik Mazhar Sultan & Anr
RESPONDENT:
U.P. Public Service Commission & Ors
DATE OF JUDGMENT: 03/04/2006
BENCH:
Y.K. Sabharwal & C.K.Thakker
JUDGMENT:
(With Civil Appeal Nos..........\005\005\005\005\005\005of 2006
(Arising out of SLP(C) Nos. 23314, 23316,
23702, 25179 & 24732 of 2005)
J U D G M E N T
(Arising out of SLP(C) No.22523 of 2005)
Y.K.SABHARWAL, CJI.
Leave granted.
The main question to be determined in these matters,
which relates to the recruitment to the posts of Civil Judge
(Junior Division) under U.P Judicial Service Rules 2001 (for
short ’the Rules’), is as to the eligibility of some candidates
from the point of view of age.
The High Court by the impugned judgment has held only
those candidates eligible who were of requisite age as on 1st
July, 2003. Is the High Court right in its conclusion or 1st
July, 2001 or 1st July, 2002 is the relevant date for
determining the age as a condition of eligibility as contended
on behalf of those candidates who stand excluded as a result
of the impugned judgment? The other viewpoint urged is that
even 1st July, 2003 held by High Court as a date for
determining eligibility of age is wrong and on correct
interpretation of the Rules, the relevant date for determining
age is 1st July, 2004. The circumstances giving rise to these
issues may first be stated.
The U.P. Public Service Commission (for short ’PSC’) was
informed by letter of Government of U.P. dated 23rd November,
2002 that it has been decided to make appointment of 347
candidates on the basis of competitive examination for
recruitment on the post of Civil Judge (Junior Division) \026 2002
in U.P. Judicial Service in three phases of 100 + 100 + 147
candidates. The PSC was requested to take prompt action and
after completion of selection, send its recommendations to the
Government by 31st March, 2003. By another requisition
dated 29th July, 2003 the Government informed PSC that the
recruitment be conducted in two phases, first for 174 posts
and later for 173 posts in second phase for which another
requisition will be sent. By this requisition PSC was asked to
advertise 174 posts in accordance with the provisions
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contained in the Rules as amended. The Rules had been
earlier amended by the Government in terms of its Notification
dated 19th March, 2003 whereby the existing requirement of
the requisite age as on ’1st day of January’ was substituted by
’1st day of July’.
By third requisition dated 10th November, 2003 sent by
the Government, PSC was informed that on the basis of
recommendations of the High Court, it had been decided to
hold selection together for 374 posts on the basis of
competitive examination. Thus, the proposal for phased
recruitment in the earlier requisitions was given up.
An advertisement dated 22-28th November, 2003 was
issued by PSC for holding examinations to select candidates to
fill 347 vacancies to the posts of Civil Judges (Junior Division).
In respect of age limit, clause 5 of the advertisement stated
that the candidates must have attained the age of 22 years
and must not have attained the age of more than 35 years on
1st July, 2004 i.e. they must not have born before 2nd July,
1969 and not later than 1st July, 1982 but for Scheduled
Caste of U.P., Scheduled Tribe of U.P. and Other Backward
Class candidates of U.P., the age limit shall be five years more.
In the same manner, it was stated that for dependants of
freedom fighters of U.P., and for Ex-army Personnel of U.P.,
the age limit would be five years more. It was further stated in
the advertisement that those candidates who were within age
on 1st July, 2001 and 1st July, 2002 shall be treated within age
for this examination.
Clause 12 of the advertisement states that the
Commission may allow any candidate provisionally on
summary checking of application but in later stages if it is
found that the candidate was not eligible or his application
was not fit for admission or he should have been rejected at
initial stage, his candidature will be cancelled and his
recommendations shall be withdrawn even if he has been
recommended.
The preliminary and the main examinations were held
and the successful candidates were called for interview
between 14th April, 2005 and 26th April, 2005. A learned
Judge of Allahabad High Court who was presiding over one of
the Interview Boards in a letter dated 26th April, 2005 sent to
the Chairman of PSC expressed the opinion that the age
requirement benefit of period during which examination could
not be held can be given only if statutory rules provide
determination of vacancies every year on a particular date and
this issue may be examined before declaration of the result.
The PSC, after examination of the issue, came to the
conclusion that the provision of relaxation in age limit given in
the advertisement seems to have been done due to
misinterpretation of Rules and, therefore, on 18th May, 2005, it
took the following decision:
(1) Due to non-availability of relaxation in age
limit on 1st July, 2004, the candidature of the
candidates who are over age on 1st July, 2004
are rejected.
(2) Result of the selection from examination be
declared excluding the aforesaid candidates.
On 2nd May, 2005 the result of the U.P. Judicial Service,
Civil judge (Junior Division) was declared excluding the
candidates in terms of the aforesaid decision.
The aforesaid decision led to filing of various writ
petitions by the excluded candidates before the High Court.
The High Court by the impugned judgment held that the basic
initiation of the recruitment process was when the first
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requisition dated 23rd November, 2002 was sent and thus the
recruitment year would be 1st July, 2002 to 30th June, 2003.
Further it was held that for determining whether a candidate
was eligible in that recruitment year it should be assumed that
an advertisement pursuant to requisition dated 23rd
November, 2002 was issued before 31st December, 2002. In
this view, it was held that all candidates who were less than
upper age limit according to their category (reserved or
unreserved) on 1st July, 2003 would be eligible to appear at
2003 recruitment. However, the candidates who had crossed
the upper age limit according to their respective categories
upto 30th June, 2003 will not be eligible under the Rules.
Those who stand excluded from consideration, though
within age limit as per the advertisement, are one set of
candidates who have questioned the correctness of the
impugned judgment. The correctness of the judgment has
also been challenged by PSC and those candidates who were
eligible from the age criteria as on 1st July, 2004. They
contend that on due application of the rules, the candidates
who were less than the upper age limit according to their
respective categories on 1st July, 2004 alone were eligible to
appear in the process of recruitment and that the conclusion
of the High Court extending the benefit to those who were less
than the age limit as on 1st July, 2003 is erroneous.
The question is as to the interpretation of the Rules
framed in exercise of the power conferred by the Article 234
and proviso to Article 309 of the Constitution of India, upon
the Governor of Uttar Pradesh in consultation with PSC and
the High Court of Judicature at Allahabad. The year of
recruitment is defined in Rule 4(m) which states that in these
rules unless the context otherwise requires \026 ’year of
recruitment’ means a period of twelve months commencing
from the first day of July of the calendar year in which the
process of recruitment is initiated by the appointing authority.
Rule 4 (m) reads as under:
"Rule 4(m) "Year of recruitment" means
a period of twelve months commencing
from the first day of July of the calendar
year in which the process of recruitment
is initiated by the appointing authority."
The High Court has held recruitment year to be from 1st
July, 2002 to 30th June, 2003.
The strength of service is provided in Rule 6 which reads
as under:
6. Strength of Service. \026 (1) the
strength of the service and of each
category of posts therein shall be such
as may be determined by the Governor
from time to time in consultation with
the Court.
(2) Strength of service and each
category of posts therein shall unless
varied by order passed in this behalf
under sub-rule (1) be as specified in
Appendix I.
(3) The Governor may from time to
time in consultation with the Court
leave unfilled or hold in abeyance, any
post without thereby entitling any
person to compensation or may create
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from time to time additional posts,
temporary or permanent as found
necessary.
Part III of the Rules relates to recruitment and Rule 7
therein provides for the source of recruitment. The said Rule
reads as under:
7. Source of Recruitment. \026
Recruitment to the service shall be made
on post of Civil Judge (Junior Division)
by direct recruitment on the basis of
competitive examination conducted by
the Commission. Competitive
examination shall be held in every year
of recruitment, subject to availability of
vacancies.
The age requirement is contained in Rule 10 which reads
as under:
10. Age \026 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 July next
following the year in which the
notification for holding the examination
by the Commission inviting Applications,
is published.
Provided that the upper age limit shall be
higher by five years in the case of
candidates belonging to Scheduled
Castes, Scheduled Tribes and such other
categories as may be notified by the
Government from time to time.
Provided further that where a candidate
was eligible in age to appear at the
examination in any year of recruitment in
which no such examination was held, he
shall be deemed to be eligible in age to
appear in the next following examination.
Provided also that the maximum number
of chances a candidate is permitted to
take will be four.
As already noted ’July’ was substituted for ’January’ by
amendment of 19th March, 2003. The afore-noted Rule is as
amended.
Part V of the Rules comprising Rules 15 to 19 deals with
procedure for recruitment to the service. We are concerned
with Rule 15 which reads as under:
15. Determination of vacancies. \026 The
Governor shall, in consultation with the
Court, determine and intimate to the
Commission the number of vacancies in
the posts of Civil Judge (Junior Division)
to be filled in during the year of
recruitment as also the number of
vacancies to be reserved for candidate
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belonging to Scheduled Caste, Scheduled
Tribe and other categories.
The present controversy has arisen as the advertisement
issued by PSC stated that the candidates who were within the
age on 1st July, 2001 and 1st July, 2002 shall be treated
within age for the examination. Undoubtedly, the excluded
candidates were of eligible age as per the advertisement but
the recruitment to the service can only be made in accordance
with the rules and the error, if any, in the advertisement
cannot override the Rules and create a right in favour of a
candidate if otherwise not eligible according to the Rules. The
relaxation of age can be granted only if permissible under the
Rules and not on the basis of the advertisement. If the
interpretation of the Rules by PSC when it issued the
advertisement was erroneous, no right can accrue on basis
thereof. Therefore, the answer to the question would turn
upon the interpretation of the Rules.
The Rules postulate the timely determination of
vacancies and timely appointments. The non-filling of
vacancies for long not only results in the avoidable litigation
but also results in creeping of frustration in the candidates.
Further, non-filling of vacancies for long time, deprives the
people of the services of the Judicial Officers. This is one of
the reasons of huge pendency of cases in the courts.
It is absolutely necessary to evolve a mechanism to
speedily determine and fill vacancies of Judges at all levels.
For this purpose, timely steps are required to be taken for
determination of vacancies, issue of advertisement,
conducting examinations, interviews, declaration of the final
results and issue of orders of appointments. For all these and
other steps, if any, it is necessary to provide for fixed time
schedule so that system works automatically and there is no
delay in filling up of vacancies. The dates for taking these
steps can be provided for on the pattern similar to filling of
vacancies in some other services or filling of seats for
admission in medical colleges. The schedule appended to the
Regulations governing medical admissions sets out a time
schedule for every step to be strictly adhered to every year.
The exception can be provided for where sufficient number of
vacancies do not occur in a given year. The adherence to
strict time schedule can ensure timely filling of vacancies. All
State Governments, Union Territories and/or High Courts are
directed to provide for time schedule for the aforesaid
purposes so that every year vacancies that may occur are
timely filled. All State Governments, Union Territories and
High Courts are directed to file within three months details of
the time schedule so fixed and date from which time schedule
so fixed would be operational.
Now, to the present case, the only dispute is in respect of
the age requirement. The resolution of the dispute would
depend upon implementation of Rule 10 of the Rules.
According to the main part of Rule 10, the minimum and
maximum age requirement has to be as on 1st July next
following the year in which the notification for holding the
examination by PSC inviting applications is published. That
publication inviting applications is dated 22-28th November,
2003. The next following year is ’2004’. Therefore, on the
plain reading of the main part of Rule 10, the age requirement
is to be seen as on 1st July, 2004.
The ’year of recruitment’ has been held by High Court as
1st July, 2002 to 30th June, 2003 after rightly coming to the
conclusion that subsequent second and third requisitions
were in continuation of the first requisition dated 23rd
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November, 2002. The process of recruitment was initiated by
the appointing authority on 23rd November, 2002. The year of
recruitment has thus been rightly determined as 1st July,
2002 to 30th June, 2003, having regard to Rule 4(m).
Now, let us examine the second proviso to Rule 10. It
stipulates that where candidate was eligible in age to appear
at the examination in any year of recruitment in which no
such examination was held, he shall be deemed to be eligible
in age to appear in the next following examination. The
benefit of proviso comes into operation if examination in any
year of recruitment is not held so as to give relief to those
candidates who would have been otherwise eligible in age but
for not holding of the examination. There are two different
categories dealt with under Rule 10 for the purpose of
eligibility from age viewpoint. One \026 under main part of Rule
10 and two \026 under second proviso of Rule 10. Under first
part, the determining factor for age is date of advertisement.
Under second part, determining factor for age is as on year of
recruitment. The age requirement under main part of Rule 10
is on the requisite date following the year in which Notification
for holding examination inviting application is published. The
expression ’Notification’ in the context means issue of
advertisement inviting applications. Under the first part,
therefore, the relevant date for determining age would be 1st
July, 2004, the advertisement having been issued on 22-28th
November, 2003. The proviso, however, makes eligible, from
the viewpoint of age, even those candidates to appear in the
next following examination, who were eligible in age if
examination was held in year of recruitment. That is the
reason that under second proviso for determining age, the
relevant fact is not the publication of notification as in main
part of Rule 10, but is age of a candidate to appear at the
examination in any year of recruitment in which examination
was not held. The candidate shall be deemed to be eligible in
age to appear in the next following examination. The year of
recruitment has been held to be 1st July, 2002 to 30th June,
2003. The examination in year of recruitment was not held.
The examination was held in March, 2004. In such a
situation, candidates would be entitled to benefit of age
requirement in terms of second proviso.
According to Rule 4(m), the year of recruitment means a
period of twelve months commencing from the first day of July
of the calendar year in which the process of recruitment is
initiated by the Appointing Authority. The Appointing
Authority within the meaning of the Rules means the
Governor of Uttar Pradesh, in other words, the State
Government of Uttar Pradesh. As already noted above, the
process of recruitment was initiated on 23rd November, 2002.
The determination of vacancies and procedure for recruitment
to the service has been provided for in Rule 15. After the
vacancies are determined, the same are required to be
intimated to the Commission to be filled in during the year of
recruitment. That process commenced by sending
communication dated 23rd November, 2002. The second and
third communications dated 29th July, 2003 and 11th
November, 2003 by the Government to PSC were in
continuation of the first one. The advertisement was
published on 22-28th November, 2003 after the third
communication. The relevant year for main part of Rule 10 is
the one next following the year in which the publication for
holding the examination is published. It would be 1st July,
2004. For the purpose of the proviso, the recruitment year is
1st July, 2002 to 30th June, 2003 and age requirement therein
would be as on 1st July, 2002 in view of Rule 4(m) read with
Rule 10 second proviso. Thus, those who were of requisite age
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as on 1st July, 2002 would be eligible under second proviso
and also those who were of requisite age as on 1st July, 2004
as per main part of Rule 10. However, it seems difficult to
comprehend how candidates of requisite age on 1st July, 2001
would be eligible for the recruitment in question. Though
Rule 10 is not happily worded yet we find it difficult to sustain
the conclusion of the High Court that the advertisement
issued on 22-28 November, 2003, can be assumed to be
issued before 31st December, 2002. The interpretation of Rule
10 placed by us is also in accord with the object of the Rules.
On harmonious consideration of the Rules, it seems
evident that Rule 10, its main part and the second proviso
read with Rule 4(m), cater for two category of candidates. The
later makes those eligible who are eligible in the recruitment
year in which process of recruitment is initiated by the
appointing authority. In this category, in the present case,
would fall those who were eligible as on 1st July, 2002. In
main part of Rule 10, those who become eligible on 1st July,
2004, would be eligible. In this view, those candidates who
were eligible on 1st July, 2002 and also those who were eligible
on 1st July, 2004 would be eligible to be considered for
appointment to the posts of Civil Judge (Junior Division).
In view of above, the appeals are allowed in the aforesaid
terms. The remaining recruitment process shall be completed
at the earliest. No costs.