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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.