Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : When Recruitment Is Held Within Year Of Recruitment, Benefit Of Second Proviso To Rule 10 Is Not Available; Rule 4(m) Valid.
JUDGEMENT TITLE : Shikha Srivastava And Others Vs. State Of U.P. And Another. On 25/05/2007 By Allahabad High Court
CASE NO : WRIT - A NO. 69148 OF 2006
CORAM : Hon'ble R.K. Agrawal,J. , Hon'ble Sunil Ambwani,J. And Hon'ble S.S. Kulshrestha,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No.69148 Of 2006
Shikha Srivastava And Others V. State Of U.P. And Others

And

Civil Misc. Writ Petition Nos.59064 And 65189 Of 2006
and Civil Misc. Writ Petition No.11556 Of 2007

And

Civil Misc. Review Application No.278540 Of 2006
On Behalf Of State Of U.P., Respondent No.1.

And

Civil Misc. Review Application No.1041 Of 2007
On Behalf Of The Hon'ble High Court Of Judicature
at Allahabad, Respondent No.2.

And

Civil Misc. Review Application No.279912 Of 2006
On Behalf Of U.P. Public Service Commission, Allahabad,
Respondent No.3.




Hon'ble R.K.Agrawal, J.
Hon'ble Sunil Ambwani, J.
Hon'ble S.S.Kulshrestha, J.

(Delivered By R.K.Agrawal, J.)

In Respect Of Advertisement Dated 7/13.10.2006 Issued By The U.P. Public Service Commission, Allahabad (hereinafter Referred To As "the Commission") Inviting Applications From The Eligible Candidates For The Post Of Civil Judge (Junior Division), For Appearing In The U.P. Judicial Service Civil Judge (Junior Division) Examinations, 2006 A Division Bench Of This Court While Hearing Civil Misc. Writ Petition No.69148 Of 2006, Noticed That There Are Two Contradictory Judgment Of Co-ordinate Benches Of The Same Strength, I.e. Two Division Benches Of This Court, Namely Civil Misc. Writ Petition No.59653 Of 2006, J.P.Tiwari And Others V. State Of U.P. And Others, And Other Connected Petitions, Decided On 2.11.2006, On The One Hand, And Civil Misc. Writ Petition No.69189 Of 2006, Sanjay Kumar Pathak V. State Of U.P. And Others, Decided On 15.12.2006, On The Other Hand, Directed The Matter To Be Placed Before The Hon'ble Chief Justice For Constitution Of A Larger Bench. Vide Order Dated 9.1.2007, Passed By The Hon'ble Chief Justice, The Present Full Bench Has Been Constituted To Resolve The Controversy.
On 26.2.2007 When The Matter Came Up Before The Full Bench, It Was Informed That An Application Seeking Review Of The Judgment And Order Dated 15.12.2006 Passed By This Court In The Case Of Sanjay Kumar Pathak (supra) Has Been Filed. Some More Writ Petitions Challenging The Validity Of The Advertisement Dated 7/13.10.2006 Have Also Been Filed. This Court, Vide Order Dated 26.2.2007 Considered It Appropriate That All The Matters Be Heard By The Full Bench. The Relevant Portion Of The Order Dated 26.2.2007 Passed By This Court Is Reproduced Below:-
"Vide Order Dated 22.12.2006 A Division Bench Consisting Of The Hon' B.S.Chauhan And Hon' Prakash Krishna, JJ., Had Noticed That There Is A Conflict Of Opinion In The Two Judgments Of This Court, Namely, Civil Misc. Writ Petition No.59653 Of 2006, Jai Prakash Tiwari And Others V. State Of U.P. And Others, And Other Connected Petitions, Decided On 2.11.2006, And Civil Misc. Writ Petition No.65189 Of 2006, Sanjay Kumar Pathak V. State Of U.P. And Others, Decided On 15.12.2006, And The Matter Has Been Referred To A Larger Bench To Resolve The Conflict In The Aforesaid Two Judgments.
We Have Been Informed That A Review Application Has Been Filed In Civil Misc. Writ Petition No.65189 Of 2006, Sanjay Kumar Pathak V. State Of U.P., Decided On 15.12.2006, Which Is Pending.
As This Full Bench Has Been Constituted To Resolve The Conflict In The Two Decisions, Referred To Above, And To Decide Which Decision Lays Down The Correct Law, It Would Be Appropriate, In Order To Avoid Conflicting Judgment Of This Court, That As The Matter Is Being Considered By The Full Bench Under The Orders Dated 9.1.2007 Passed By The Hon'ble Chief Justice, The Review Application And Any Other Petition Relating To The Same Advertisement Pending In This Court, Be Also Considered By The Full Bench.
Let The Matter Be Placed Before The Hon'ble Acting Chief Justice For Passing The Necessary Orders."

Hon'ble The Acting Chief Justice, Vide Order Dated 26.2.2007, Directed To Place The Review Application Filed In The Case Of Sanjay Kumar Pathak (supra) And Other Connected Writ Petitions, Before The Full Bench. This Is How The Application Seeking Review Of The Judgment And Order Dated 15.12.2006 Passed In Sanjay Kumar Pathak (supra) And All Other Writ Petitions Have Come Up Before This Court.
Law Laid Down In J.P. Tiwari's Case :
In The Case Of J.P.Tiwari (supra), This Court While Interpreting The Provisions Of The U.P.Judicial Service Rules, 2001 (hereinafter Referred To As "the Rules"), Has Held As Follows:-
(i) The Phrase "process Of Recruitment Is Initiated By The Appointing Authority", Occurring In Rule 4(m), Means The Date On Which The Requisition Is Sent By The Governor To The Commission Under Rule 15. The Requisition Was Sent In August, 2006;
(ii) The Relevant Date For Determining The Upper Age Limit, In Case Of A General Candidate, Which Is 35 Years, And In Respect Of Candidates Belonging To Reserved Category, Which Is 40 Years, Is 1.7.2007 According To First Part Of Rule 10. It Repelled The Contention Of The Writ Petitioners That The Upper Age Limit Of All Such Candidates Who Were Within The Upper Age Limit On 1.7.2006, Should Also Be Treated To Be Eligible To Appear In The Examination;
(iii) The Second Proviso To Rule 10 Is Not Attracted As The Examination Is Being Held In The Year Of Recruitment Itself;
(iv) It Repelled The Contention That If The Examination, In Any Year, Is Not Held, The Benefit Of The Second Proviso To Rule 10 Would Be Available. The Court Had Held That The Rule Only Says That The Examination Shall Be Held In Every Year Of Recruitment And Not In Every Year, I.e., Every Calendar Year;
(v) It Repelled The Contention That The Definition Of "year Of Recruitment", In Rule 4(m), Should Be Read Down To Include Every Calendar Year Irrespective Of Initiation Of Process Of Recruitment By The Appointing Authorities In All Cases Where Vacancies Are Existing And Yet Recruitment Process Is Not Initiated;
(vi) It Declined To Hold Up The Selection And Appointment On The Ground That The Identification Has Not Been Done So Far For Reservation For Physically Disabled Person On The Post Of The Civil Judge (Junior Division), As Per Direction Of The Full Bench Of This Court In The Case Of Sarika V. State Of U.P. And Others 2005(4) ESC 2378;
(vii) The Court Has Further Held That The Persons Born On 1.7.1972 Would Have Attained The Age Of 35 Years 30.6.2007 And Have, Therefore, Crossed The Upper Age Limit On 1.7.2007. The Clarification Contained In The Advertisement, "that Is They Must Not Have Been Born Before 2nd July 1972" Is Correct.
Law Laid Down In Sanjay Kumar Pathak's Case :
In The Case Of Sanjay Kumar Pathak (supra) This Court Has Held That -
(i) The Process Of Recruitment Seems To Be Initiated On 30.12.2004. The Process Of Recruitment Has Been Held To Have Been Initiated On 30.12.2004 On The Basis Of The Letter Of Even Date Of The State Government Sending Requisition To The High Court To Identify The Vacancies.
(ii) The Candidates Whose Requisite Age Is Falling From Such Period Till The Date Of Advertisement, Are To Be Allowed To Participate;
(iii) Since The State Is The Appointing Authority, It Is Natural For The State To Relax The Age Of The Candidates To Accommodate All Of Them In The Forthcoming Selection To Make The Selection Process Uptodate.
(iv) On The Basis Of The Statement Made By Mr. Vijendra Singh, Learned Chief Standing Counsel, That The State Of U.P. Has No Difficulty In Accommodating The Candidates By Allowing Them To Sit In The Examination Relaxing The Age On The Basis Of Fresh Requisition, The Court Allowed The Writ Petition Laying Down The Aforesaid Principle And Also On The Concession Made On The Part Of The State And Quashed The Requisition Already Made By The State Of U.P. And Consequently, The Advertisement Being Advertisement Dated 7/13.10.2006.
From The Aforesaid, It Would Be Seen That The Two Division Benches Of This Court Have Taken A Contrary Stand Vis-a-vis The Initiation Of Process Of Recruitment. While In The Case Of J.P.Tiwari (supra) The Process Of Recruitment Has Been Held To Have Been Initiated In August, 2006 When The State Government Had Sent The Requisition To The Commission, In The Case Of Sanjay Kumar Pathak (supra), This Court Has Held That The Process Of Recruitment Had Started On 30.12.2004 When The State Had Sent The Requisition To The High Court To Identify The Vacancies.
Facts Of The Case :
Civil Misc. Writ Petition No.69148 Of 2006 :
Shikha Srivastava And Two Others Who Are The Petitioners Herein, Have Sought Quashing Of The Advertisement No.A-6/E-1/2006, Dated 7/13.10.2006 Issued By The Commission Inviting Application From All Eligible Candidates For The Post Of The Civil Judge (Junior Division) And For Holding The U.P.Judicial Service Civil Judge (Junior Division) Examination, 2006. It Appears That They Had Applied. Their Grievance Appears To Be Against The Method Of Scaling Adopted By The Commission In The Preliminary And The Main Examinations. The Matter Was Taken Up On 21.12.2006 By The Division Bench When The Court Noticed The Two Contrary Judgments Referred To Hereinbefore Regarding The Validity Of The Advertisement Dated 7/13.10.2006 And Referred The Matter To A Full Bench.
After The Full Bench Was Constituted And The Matter Was Being Heard, Learned Counsel For The Petitioners Filed An Application Seeking Withdrawal Of The Writ Petition On The Ground That The Question Of Scaling Has Been Decided By The Apex Court In The Case Of Sanjay Singh And Another V. U.P. Public Service Commission, Allahabad And Another, (2007) 3 SCC 720. The Scaling System Has Been Held To Be Illegal But It Has Been Held That This Judgment Shall Not Affect The Selection And Appointments Already Made In Pursuance Of 2003 Examinations. As There Was Conflicting Judgments Of Two Co-ordinate Benches Of This Court, The Court Did Not Permit For Withdrawal Of The Writ Petition And Directed The Petitioners' Counsel To Address The Court On Merit, Which Sri Y.S.Lohit, Advocate, Did.
Civil Misc. Writ Petition No.11556 Of 2007 :
Ranjanveer Singh Who Has Done His LL.B. In The Year 1999, Has Applied In The U.P.Judicial Service Civil Judge (Junior Division) Examination, 2006 Pursuant To The Advertisement Dated 7/13.10.2006. According To Him, 295 Vacancies Were In Existence From 1.7.2002 To 30.6.2005 And After 30.6.2005, 60 More Vacancies Have Been Added. On 30.12.2004, The Under Secretary, Government Of Uttar Pradesh, Wrote A Letter To The Registrar General Of The High Court Of Allahabad To Send The Details Of The Vacancies Of The Civil Judge (Junior Division) So That Steps Could Be Taken For Filling Up These Vacancies. A Reminder Was Sent On 21.6.2005, Followed By Another Reminder Dated 10.10.2005. The High Court Informed The State Government To Advertise The Filling Up Of 355 Vacancies. The State Government Thereafter Sent A Requisition In August, 2006 To The Commission For Taking Steps For Advertisement And Filling Up Of The Vacancies. The Commission Had Issued The Advertisement On 7/13.10.2006. According To The Petitioner, There Was No Consultation With The State Government By The High Court To Keep The Vacancies Existing From 1.7.2002 Till 1.7.2006 Which Had Arisen Every Year, Namely, From 1.7.2002 To 30.6.2003, 1.7.2003 To 30.6.2004, 1.7.2004 To 30.6.2005 And 1.7.2005 To 30.6.2006. The Date Of Birth Of The Petitioner Is 8.8.1974. His Grievance Is That The Process Of Recruitment Should Be Done Every Year.
Civil Misc. Writ Petition No.59064 Of 2006 :
The Petitioner, Jai Prakash Gupta, Has Obtained Three Years LL.B. Degree In The Year 1999. He Has Appeared In The Civil Judge (Junior Division) Examination Conducted By The Commission In The Year 2003. However, He Was Not Selected. The Petitioner's Date Of Birth Is 1.7.1972. In The Advertisement Dated 7/13.10.2006, Published By The Commission, Wherein The Upper Age Limit Has Been Fixed As 35 Years In Respect Of The General Category Candidates, It Has Been Mentioned That The Person Should Not Be Born Before 2.7.1972. The Grievance Of The Petitioner Is That He Could Appear Only In One Examination, I.e., In The Year 2003, And As No Examination Has Been Held During The Intervening Period Of Three Years, He Has Become Ineligible In The Examination Conducted Pursuant To The Advertisement Dated 7/13.10.2006. According To Him, The Provisions Of Rule 4(m) And Rule 10 Of The Rules Be Read As Taking Into Its Fold All Such Candidates Who Were Eligible During The Intervening Period Of The Two Examinations And If Such A View Is Taken, The Petitioner Would Be Eligible To Appear.
Civil Misc. Review Application No.278540 Of 2006
filed By State Of U.P., Respondent No.1 :
In The Case Of Sanjay Kumar Pathak (supra) Which Was Decided On 15.12.2006, The State Of U.P. Who Was The Respondent No.1 Therein, Has Filed An Application Seeking Review Of The Judgment On The Ground That No Instruction Was Issued Either From The Office Of The Legal Remembrancer Or From The Office Of The Advocate General Nor Any Such Authority Was Given To Sri Vijendra Singh, Chief Standing Counsel, As Has Been Recorded In The Judgment And Under Some Misconception The Statement Has Been Recorded. There Is No Notification Issued By The State Government Which Provides For The Scope For Age Relaxation. Moreover, There Was No Pleading And Prayer In The Writ Petition For Quashing The Requisition Which Is Otherwise Not Bad In Law And The Inclusion Or Exclusion Of The Candidate On Account Of Age Does Not Lead To Quashing Of Entire Requisition. Further, Rule 10 Of The Rules Has Been Misread And Misconstrued And The Proviso Alone Cannot Be Read In Isolation.

Civil Misc. Review Application No.1041 Of 2007
filed By The Hon'ble High Court Of Judicature
at Allahabad, Respondent No.2.

In The Case Of Sanjay Kumar Pathak (supra) Which Was Decided On 15.12.2006, The High Court Of Judicature At Allahabad, Who Was The Respondent No.2 Therein, Has Filed An Application Seeking Review Of The Judgment On The Ground That Under Rule 10 A Candidate For Direct Recruitment To The Judicial Service Must Have Attained The Age Of 22 Years And Must Not Have Attached The Age Of More Than 35 Years On The First Day Of July Following The Year In Which The Notification For Holding The Examination By The Commission Inviting The Application Has Been Published. The Second Proviso Provides That If In Any Year Of Recruitment No Such Examination Is Held, A Candidate Who Was Eligible In Age To Appear In The Examination, Then He Shall Be Deemed To Be Eligible In Age To Appear In The Next Following Examination. The Aforesaid Provision Has To Be Read Alongwith The Definition Of The Words "year Of Recruitment" Given In Rule 4(m) Of The Rules Which Provides That A Period Of 12 Months Commencing From The First Day Of July Of The Calendar Year In Which The Process Of Recruitment Is Initiated By The Appointing Authority. In The Present Case, The Process Of Recruitment Was Initiated By The State Government Who Is The Appointing Authority, By Sending The Requisition To The Commission On 19.8.2006. Therefore, The Year Of Recruitment Would Commence From 1.7.2006 To 30.6.2007 And Eligibility Of The Candidates Regarding Age Has To Be Determined In Accordance With The Main Clause Of Rule 10. Second Proviso Is Not Attracted As The Examination Has Been Held On 31.12.2006, I.e., During The Year Of Recruitment Itself. The Controversy Has Been Set At Rest By The Decision Of The Apex Court In The Case Of Malik Mazhar Sultan (supra). The Division Bench In The Case Of Sanjay Kumar Pathak (supra) Has Misread The Decision Of Malik Mazhar Sultan (supra) And Has Wrongly Taken The Date Of Initiation Of Process Of Recruitment To Be 30.12.2004 On Which Date Only A Letter From The State Government To The High Court Enquiring About The Likely Vacancies In The Cadre Was Sent. It Has Further Been Stated That On 29.11.2006 Arguments On All The Points Were Heard At Length By The Division Bench Hearing The Case Of Sanjay Kumar Pathak (supra), As Would Be Clear From The Order Dated 29.11.2006 Itself Passed By The Court And, Therefore, It Is Not Correct To Say That No Arguments Were Advanced By The Learned Counsel On Behalf Of The High Court. The Matter Was Adjourned For Subsequent Dates To Enable The Standing Counsel To Clarify His Stand Regarding Instructions With Reference To Grant Of Relaxation In Age To The Candidates. The Review Application Has, Therefore, Rightly Been Filed. It Has Also Been Stated That Rule 35 Of The Rules Do Not Contemplate Grant Of Relaxation In Age To The Candidates Appearing In The Selection Scheduled. It Only Permits Relaxation Regarding Conditions Of Service Of Persons Appointed To The Service, Therefore, There Was No Occasion To Grant Any Concession By The Chief Standing Counsel Nor It Was Permissible Under Law.
Civil Misc. Review Application No.279912 Of 2006
filed By U.P. Public Service Commission, Allahabad,
respondent No.3 :
The Commission Has Filed An Application Seeking Review On The Ground That The Division Bench In The Case Of Sanjay Kumar Pathak (supra) Has Not Considered The Judgment Of A Coordinate Bench In The Case Of J.P.Tiwari (supra) And Further It Had No Jurisdiction To Hear The Service Matters Relating To The Judicial Officers.
All The Review Applications Have Been Placed Before This Full Bench Under The Orders Of The Hon'ble Acting Chief Justice.
Provisions Of Rules :
To Appreciate The Controversy Involved Herein, The Relevant Provisions Of The Rules Are Reproduced Below:-
"4. Definitions. - In These Rules Unless The Context Otherwise Requires -
.... .... ....
(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:
.... .... ...."

"6. Strength Of Service. - (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 From Time To Time Additional Posts, Temporary Or Permanent As Found Necessary.

7. Source Of Recruitment. - Recruitment To The Service Shall Be Made On Post Of Civil Judge (Junior Division) By Direct Recruitment On He Basis Of Competitive Examination Conducted By The Commission. Competitive Examination Shall Be Held In Every Year Of Recruitment, Subject To Availability Of Vacancies."

.... .... ....

"10. Age. - 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."

.... .... ....

"15. Determination Of Vacancies. - 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 Belonging To Scheduled Caste, Scheduled Tribe And Other Categories."
.... .... ....

"35. Relaxation From The Conditions Of Service. - When The Governor Is Satisfied That The Operation Of Any Rule Regulating The Condition Of Service Persons Appointed To The Service Causes Undue Hardship In Any Particular Case, He May, Notwithstanding Anything Contained In These Rules Applicable To The Case, By Order Dispense With Or Relax The Requirements Of That Rule To Such Extent And Subject To Such Conditions As He May Consider Necessary For Dealing With The Case In A Just And Equitable Manner :
Provided That The Court And The Commission Shall Be Consulted Before The Requirements Of A Rule Are Dispensed With Or Relaxed."

We Have Heard Sarvasri Arvind Srivastava, Y.S.Lohit, Pankaj Kumar Tyagi, Arvind Kumar Shukla For The Petitioners; Sri S.M.A.Kazmi, Learned Advocate General, Assisted By Sri S.P.Kesarwani, Standing Counsel, Sri Amit Sthalkar And Sri M.A.Qadir, For The Contesting Respondents.
Rival Submissions :
Sri Arvind Srivastava, Learned Counsel, Submitted That There Is No Conflict Of Decision On Any Issue In The Judgment Rendered In The Case J.P.Tiwari And Sanjay Kumar Pathak (supra). A Decision Cannot Be Equated With The Conclusion. The Occasion For A Decision Can Only Arise Where The Pleadings Reflected The Conflicting Claims. In The Absence Of Facts Pleaded, A Claim Cannot Arise And In The Absence Of Conflicting Claims, There Can Be No Occasion For A Decision. Moreover, Concession On A Question Of Fact, Even If Erroneous, Cannot Give Rise To A Decision In Contradistinction To A Conclusion. The Reference Made To The Larger Bench Is, Therefore, Incompetent. In The Case Of J.P.Tiwari (supra), Common Issues Were Culled Out By The Bench About The Date That The Candidates Must Not Have Crossed The Upper Age Limit For Appearing At The Examination And There Was No Dispute That The Requisition Contemplated Under Rule 15 Of The Rules Was Sent In August, 2006. The Second Proviso To Rule 10 Was Interpreted And Referring To The Decision Of The Apex Court In The Case Of Malik Mazhar Sultan And Another V. U.P.Public Service Commission And Others, (2006) 9 SCC 507, It Has Observed That The Date 1.7.2002 In The Apex Court's Decision Appears To Be A Clerical Error While Holding That The Situation Has Not Arisen For Applying The Second Proviso Leaving The Question Undecided As In Its Opinion It Was Hypothetical And Merely Academic. The Vires Of Rule 4(m) Of The Rules And The Implication Arising Under The Expression "consultation", "determination" And "initiation" Used In Rule 15 Of The Rules Had Not Been Considered. In The Case Of Sanjay Kumar Pathak (supra), The Issue Raised Was Regarding The Validity Of The Claim On The Basis Of Rule 4(m) Of The Rules Read With The Third Proviso To Rule 10. Another Issue Was As To Whether The Initiation Of The Process Of Recruitment Begins When The Recruiting Authority Sent The Requisition To The High Court Starting The Consultation Referred To In Rule 15 Of The Rules. The Division Bench Had Noticed That The Requisition Had Been Sent By The Recruiting Authority Starting With The Consultation On 30.12.2004 And Repeated Thereafter On 21.6.2005 And 10.8.2005 And The Consultation Became Final On 23.1.2006 When The High Court Approved The Proposal Of The State Government Whereafter The Intimation Was Received By The Commission On 12.7.2006, Which Facts Were Neither Controverted Nor Disputed Either By The Commission Or The State Government And In This Background, The Bench Had Held That The Process Of Recruitment Had Been Initiated On 30.12.2004. Thus, The Controversy Raised In The Two Petitions Were Entirely Different And Possibly There Cannot Be Any Conflict. He Also Invited The Attention Of The Court To The Order Dated 24.7.2006 Wherein The Apex Court Had Declined To Give Any Clarification To The Order Dated 3.4.2006 In Malik Mazhar Sultan (supra) Regarding The Date Of Eligibility Of The Candidates. He Relied Upon The Following Decisions Of The Apex Court For The Proposition That The Decision In The Case Of J.P.Tiwari (supra) Is To Be Taken As Sub Silentio And, Therefore, Has No Binding Effect Hence The Question Of Conflict Does Not Arise:-
(i) Malik Mazhar Sultan And Another V. U.P. Public Service Commission And Others, (2006) 9 SCC 507;
(ii) Arnit Das V. State Of Bihar, (2000) 5 SCC 488; And
(iii) Municipal Corporation Of Delhi V. Gurnam Kaur, (1989) 1 SCC 101.
According To Him, The Decision Rendered In The Case Of J.P.Tiwari (supra) Is Per Incuriam As It Has Not Considered The Meaning Of The Words "consultation", "determination" Occurring In Rule 15 Of The Rules And "initiate" In Rule 4(m) Of The Rules.
He Further Submitted That The Applications Seeking Review Of The Order Passed By The Division Bench Is To Be Placed Before The Same Bench And The Chief Justice Has No Power, Authority Or Jurisdiction To Nominate The Review Applications To Any Other Bench Except The Same Bench Which Had Heard The Matter. According To Him, Qualifying The Commencement Of Recruitment Year With The Initiation Of The Process Of Recruitment Is Not Based Upon Any Intelligible Differentia Nor Has Any Nexus With The Object Sought To Be Achieved By Such Differentiation And It Amounts To Classification In A Homogeneous Class. Different Definitions Of The Phrase "year Of Recruitment" Is Not Permitted In Respect Of The State Government Employees. Rule 4(m) Of The Rules Grants Excessive Delegation Of Essential Function By The Legislature On The Executive And By Providing No Time Limit For Filling Up Vacancies, It Conferred Uncanalised And Arbitrary Power On The Appointing Authority. The Process Of Recruitment Having Been Initiated By The Letter Dated 30.12.2004, The Advertisement Ignoring The Candidates Who Were Eligible In Recruitment Years 1.7.2003 To 30.6.2004, 1.7.2004 To 30.6.2005, 1.7.2005 To 30.6.2006 And 1.7.2006 To 30.6.2007, It Is Contrary To The Provisions To Rule 10 Of The Rules. The Intention Of The Rules Is To Hold The Examination Every Year And If It Is Read In Any Other Manner, It Will Lead To Absurdity And Rule 4(m) Should Be Read Down So As To Mean The Process To Start From The Date When The Vacancies Are To Be Determined, Otherwise It Would Be Violative Of Articles 14 And 16 Of The Constitution Of India. Further, In View Of The Decision Of The Apex Court In The Case Of Malik Mazhar Sultan (supra) Year Of Recruitment In The Case Of Requisition Sent In The Year 2003, The Candidates Who Were Eligible On 1.7.2002 Having Been Treated To Be Eligible, The Advertisement Excluding The Candidate Eligible During The Period 1.7.2003 To 30.6.2004, 1.7.2004 To 30.6.2005, 1.7.2005 To 30.6.2006 And 1.7.2006 To 30.6.2007, Is Contrary To The Law Laid Down By The Apex Court. According To Him, No Consultation Having Been Done By The Appointing Authority With The High Court To Keep The Post Vacant From 1.7.2003 To 30.6.2007, The Appointing Authority Cannot Act Arbitrarily In Keeping The Post Vacant. It Has Resulted In Violation Of The Provisions Of Articles 14 And 16 Of The Constitution Of India And Stands Vitiated.
The Learned Advocate General Submitted That The State Government Had Not Given Any Instructions To Sri Vijendra Singh, Chief Standing Counsel, For Making A Statement That The State Government Is Prepared To Relax The Age. The Question Of Giving Such A Concession Or Instruction Cannot Arise In View Of The Specific Provisions Of Article 234 Of The Constitution Of India And The Provisions Of The Rules. According To Him, The State Government Had Sent The Requisition To The Commission On 19.8.2006. The Advertisement Was Issued By The Commission On 7/13.10.2006 Announcing The Schedule Of Examination To Be Held On 31.12.2006. Thus, The Year Of Recruitment Within The Meaning Of Rule 4(m) Would Be From 1.7.2006 To 30.6.2007. For The Purposes Of Eligibility Of Age Under Rule 10, Any Candidate Who Has Completed 35 Years On 30.6.2007, Would Not Be Eligible For Selection In The Examination. The Second Proviso To Rule 10 Has No Application Inasmuch As The Examination Is Being Held In The Year Of Recruitment. Rule 4(m) And Rule 10 Are Not Arbitrary Nor They Violate The Provisions Of Articles 14 And 16 Of The Constitution Of India. It Is Open To The State Government To Provide Different Set Of Rules For Different Categories Of Its Employees And There Cannot Be Any Comparison.
Sri Amit Sthalkar, Learned Counsel Appearing For High Court, Submitted That From A Reading Of Rule 10 It Would Be Seen That A Candidate For Direct Recruitment To The Judicial Service Must Have Attained The Age Of 22 Years And Must Not Have Attached The Age Of More Than 35 Years On The First Day Of July Following The Year In Which The Notification For Holding The Examination By The Commission Inviting The Application Has Been Published. However, Under The First Proviso, A Relaxation Has Been Provided To The Candidates Belonging To Scheduled Caste And Scheduled Tribe Etc. The Second Proviso Provides That If In Any Year Of Recruitment No Such Examination Is Held, A Candidate Who Was Eligible In Age To Appears In Examination, Then He Shall Be Deemed To Be Eligible In Age To Appear In The Next Following Examination. According To Him, The Aforesaid Provision Has To Be Read Alongwith The Definition Of The Phrase "year Of Recruitment" Given In Rule 4(m) Of The Rules Which Provides That A Period Of 12 Months Commencing From The First Day Of July Of The Calendar Year In Which The Process Of Recruitment Is Initiated By The Appointing Authority. In The Present Case, The Process Of Recruitment Was Initiated By The State Government Who Is The Appointing Authority, By Sending The Requisition To The Commission On 19.8.2006. Therefore, The Year Of Recruitment Would Commence From 1.7.2006 To 30.6.2007 And Eligibility Of The Candidates Regarding Age Has To Be Determined In Accordance With The Main Clause Of Rule 10. Second Proviso Is Not Attracted As The Examination Has Been Held On 31.12.2006, I.e., During The Year Of Recruitment Itself. The Controversy Has Been Set At Rest By The Decision Of The Apex Court In The Case Of Malik Mazhar Sultan (supra). The Division Bench In The Case Of Sanjay Kumar Pathak (supra) Has Misread The Decision Of Malik Mazhar Sultan (supra) And Has Wrongly Taken The Date Of Initiation Of Process Of Recruitment To Be 30.12.2004 On Which Date Only A Letter From The State Government To The High Court Enquiring About The Likely Vacancies In The Cadre Was Sent. He Further Submitted That On 29.11.2006 Arguments On All The Points Were Heard At Length By The Division Bench Hearing The Case Of Sanjay Kumar Pathak (supra), As Would Be Clear From The Order Dated 29.11.2006 Itself Passed By The Court And, Therefore, It Is Not Correct To Say That No Arguments Were Advanced By Him. The Matter Was Adjourned For Subsequent Dates To Enable The Standing Counsel To Clarify Their Stand Regarding Instructions With Reference To Grant Of Relaxation In Age To The Candidates. The Review Application Has, Therefore, Rightly Been Filed. He Further Submitted That Rule 35 Of The Rules Do Not Contemplate Grant Of Relaxation In Age To The Candidates Appearing In The Selection Scheduled. It Only Permits Relaxation Regarding Conditions Of Service Of Persons Appointed To The Service, Therefore, There Was No Occasion To Grant Any Concession By The Chief Standing Counsel Nor It Was Permissible Under Law.
Sri M.A.Qadir, Appearing For The Commission, Submitted That In Respect Of The Examination For Recruitment Of The Civil Judge (Junior Division), Announced In The Year 2003, Which Was Held In March, 2004, I.e., The Immediately Previous Examination, The State Government Had Sent The Requisition For Filling Up The Posts By Holding The Examination, To The Commission Vide Letter Dated 23.11.2002. It Was Followed By Another Requisition Sent On 29.7.2003 And 11.11.2003, For Total 347 Posts. The Commission Issued An Advertisement On 22/28.11.2003 Prescribing The Maximum Age Of 35 Years As On 1.7.2004. It Was Provided That The Candidates Who Were Within Age Between 1.7.2001 To 1.7.2002 Shall Also Be Treated As Eligible. In This Background, The Apex Court In Malik Mazhar Sultan (supra) Had Held That Year Of Recruitment Would Be From 1.7.2002 To 30.6.2003 But Since The Examination Was Not Held In The Said Year Of Recruitment, But Was Held In March, 2004, Therefore, The Second Proviso To Rule 10 Would Come Into Play And Consequently The Candidates Who Were Within Age Shall Be Deemed To Be Eligible To Appear In The Next Following Examination, Which Would Be 1.7.2004 And, Therefore, Those Candidates Who Were Eligible On 1.7.2004 Were Also Entitled To Appear In The Examination. According To Him, As, In The Present Case, The Requisition Was Sent By The State Government In August, 2006 And The Examination Had Been Held On 31.12.2006, Therefore, The Candidates Who Have Attained The Age Of 22 Years And Have Not Attained The Age Of 35 Years On 1.7.2007 Are Eligible To Appear In The Examination, The Second Proviso To Rule 10 Is Not Applicable. He Further Submitted That The Controversy Has Been Set At Rest In The Case Of Malik Mazhar Sultan (supra) And The View Taken By This Court In The Case Of J.P.Tiwari (supra) Is In Conformity With The Aforesaid Decision. The Writ Petition Is, Therefore, Liable To Be Dismissed. He Has Relied Upon The Following Decisions:-
(i) Durga Chand Mishra V. State Of Orissa, (1987) 4 SCC 644;
(ii) Umesh Chand Shukla V. Union Of India, 91985) 3 SCC 721;
(iii) J&K Public Service Commission V. Dr. Narendra Mishra And Others, (1993) 2 SCC 630;
(iv) B.L.Shredharand Others V. K.M.Munreddy, JT 2002 SC 363;
(v) Dr. H.S.Bhiroy V. New Delhi Municipal Committee, AIR 1982 SC 554; And
(vi) Commissioner Of Income Tax V. B.N.Bhattacharya, AIR 1979 SC 1725.
Discussions :
Point No.1 :
Whether This Court Is Entitled To Decide The Review Applications Filed In The Case Of Sanjay Kumar Pathak (supra) ?
Rule 1 Of Chapter V Of The Allahabad High Court Rules, 1952 (hereinafter Referred To As "the Rules Of Court"), Framed Under Article 225 Of The Constitution Of India, Empowers The Chief Justice To Constitute Benches And To Allocate Work. For Ready Reference, Rule 1 Is Reproduced Below:-
"1. Constitution Of Benches. - Judges Shall Sit Alone Or In Such Division Courts As May Be Constituted From Time To Time And Do Such Work As May Be Allotted To Them By Order Of The Chief Justice Or In Accordance With His Directions."

Rule 6 Of Chapter V Empowers The Chief Justice To Constitute A Bench Of Two Or More Judges To Decide A Case Or Any Question Of Law Formulated By The Bench Hearing A Case. For Ready Reference, Rule 6 Is Reproduced Below:-
"6. Reference To A Larger Bench. - The Chief Justice May Constitute A Bench Of Two Or More Judges To Decide A Case Or Any Question Of Law Formulated By A Bench Hearing A Case. In The Latter Event The Decision Of Such Bench On The Question So Formulated Shall Be Returned To The Bench Hearing The Case And That Bench Shall Follow That Decision On Such Question And Dispose Of The Case After Deciding The Remaining Questions, If Any, Arising Therein."

Rule 12 Of Chapter V Provides For Hearing Of The Application For Review. It Reads As Under:-
"12. Application For Review. - An Application For The Review Of A Judgment Shall Be Presented To The Registrar, Who Shall Endorse Thereon The Date When It Is Presented And Lay The Same As Earlier As Possible Before The Judge Or Judges By Whom Such Judgment Was Delivered Along With An Office Report As To Limitation And Sufficiency Of Court Fees. If Such Judge Or Judges Or Any One Or More Of Such Judges Be No Longer Attached To The Court, The Application Shall Be Laid Before The Chief Justice Who Shall Having Regard To The Provisions Of Rule 5 Of Order XLVII Of The Code, Nominate A Bench For The Hearing Of Such Applications:
Provided That An Application For The Review Of A Judgment Of One Judge Who Is Precluded By Absence Or Other Cause For A Period Of Six Months Next After The Presentation Of The Application From Considering The Decree Or Order To Which The Application Refers, Shall Be Heard Or Disposed Of By A Single Judge And That An Application For The Review Of A Judgment Of Two Or More Judges, Any One Or More Of Whom Is Or Are Precluded By Absence Or Other Cause For A Period Of Six Months Next After The Presentations Of The Application From Considering The Decree Or Order To Which The Application Refers, Shall Be Heard Or Disposed Of By A Bench Consisting Of The Same Or A Greater Number Of Judges.
Explanation. - For The Purposes Of This Rule The Expression ''no Longer Attached To The Court' Shall Be Deemed To Include Absence From The Permanent Place Of Sitting On Account Of The Directions Given Under Rule 17 Of This Chapter, Illness Or Any Other Cause."

From A Conjoint Reading Of The Aforesaid Provisions Of The Rules Of Court, We Find That The Hon'ble Chief Justice Had Been Granted Very Wide Power To Constitute And To Allocate Any Work. He Is Empowered To Constitute A Full Bench Of Three Judges Or More For Deciding A Case. This Includes An Application For Review.
In The Case Of State Of Rajasthan V. Prakash Chand And Others, AIR 1998 SC 1344, Where A Learned Single Judge Had Directed A Part Heard Case To Be Listed Before Him While Sitting In A Division Bench, The Apex Court Has Held That It Is A Complete Falacy To Assume That A Part Heard Case Can Under No Circumstance Be Withdrawn From The Bench And Referred To A Larger Bench.
In Jasbir Singh V. State Of Punjab, JT 2006 (9) SC 35, Where An Administrative Judge, During Inspection Of Jail, On An Application Made By A Prisoner, Directed The Sessions Judge To Enlarge Him On Bail, The Apex Court Has Held That The Application So Received Ought To Have Been Forwarded To The Court Concerned For Passing Appropriate Orders And It Is The Prerogative Of The Chief Justice To Allocate Business Both On Judicial And Administrative Sides And It Is Not Within The Competence Of Any Single Or Division Bench To Give Any Direction.
In A Full Bench Decision Of This Court In The Case Of Brij Bhushan Chaudhary And Others V. State Of U.P. And Others, 2003 UPTC 53, In Paragraph 65 Of The Report, It Has Been Held That The Chief Justice Is The Master Of Roaster And All Assignments And Determinations Made By Him Are Binding. The Judges Cannot Sue Motu Take Up Matters In The Absence Of Proper Order Of Determination And Once A Matter Is Assigned Before A Single Bench Or A Division Bench, The Same Is Binding And There Is No Scope To Override The Determination To That Effect.
Moreover, The Apex Court, In The Case Of Prakash Chand (supra), Has Upheld The Power Of The Chief Justice To Withdraw Any Case From The Roaster Of One Bench And To Assign It To Any Other Bench. It Held As Follows:-
""....the Administrative Control Of The High Court Vests In The Chief Justice Of The High Court Alone And That It Is His Prerogative To Distribute Business Of The High Court Both Judicial And Administrative. He Alone, Has The Right And Power To Decide How The Benches Of The High Court Are To Be Constituted; Which Judge Is To Sit Alone And Which Cases He Can And Is Required To Hear As Also As To Which Judges Shall Constitute A Division Bench And What Work Those Benches Shall Do. In Other Words The Judges Of The High Court Can Sit Alone Or In Division Benches And Do Such Work Only As May Be Allotted To Them By An Order Of Or In Accordance With The Directions Of The Chief Justice. That Necessarily Means That It Is Not Within The Competence Or Domain Of Any Single Or Division Bench Of The Court To Give Any Direction To The Registry In That Behalf Which Will Run Contrary To The Directions Of The Chief Justice. Therefore In The Scheme Of Things Judicial Discipline Demands That In The Event A Single Judge Or A Division Bench Considers That A Particular Case Requires To Be Listed Before It For Valid Reasons, It Should Direct The Registry To Obtain Appropriate Orders From The Chief Justice. The Puisne Judges Are Not Expected To Entertain Any Request From The Advocates Of The Parties For Listing Of Case Which Does Not Strictly Fall Within The Determined Roster. In Such Cases, It Is Appropriate To Direct The Counsel To Make A Mention Before The Chief Justice And Obtain Appropriate Order. This Is Essential For Smooth Functioning Of The Court."

In The Case Of Sanjay Kumar Pathak (supra), The Review Applications Filed By The Respondents Have Been Nominated By The Hon'ble Acting Chief Justice Vide Order Dated 26.2.2007.
When A Doubt Was Expressed About The Powers Of The Hon'ble Chief Justice By The Division Bench Hearing The Case Of Sanjay Kumar Pathak (supra), Vide Order Dated 2.3.2007 The Matter Was Again Directed To Be Placed Before The Hon'ble Chief Justice, And Hon'ble The Acting Chief Justice, Vide Order Dated 6.3.2007 Has Again Directed The Matter To Be Placed Before The Full Bench Already Constituted.
In The Case Of Ashok Tanwar And Another V. State Of H.P. And Others, AIR 2005 SC 614, The Constitution Bench Of The Apex Court While Holding The Powers Of The Acting Chief Justice To Be The Same As Of The Chief Justice, Has Held As Follows:-
"27. In The Very Terms Of Article 223 Of The Constitution, When The Office Of Chief Justice Of A High Court Is Vacant Or When Any Such Chief Justice Is By Reason Of Absence Or Otherwise, Unable To Perform The Duties Of The Office Of The Chief Justice, Duties Of The Office Of Chief Justice Shall Be Performed By Such One Or The Other Judges Of The Court As The President May Appoint For The Purposes. Plain Reading Of This Article Shows That One Or The Other Judges Of The High Court Appointed In The Vacancy Of Chief Justice Of A High Court For The Time Being Can Perform The Duties Of The Office Of Chief Justice. No Restriction Or Limitation In Performance Of Duties By Acting Chief Justice Can Be Read Into The Said Article. The Article Also Does Not Indicate As To Which Of The Duties Of The Chief Justice Can Be Performed Or Which Of The Duties Cannot Be Performed By The Acting Chief Justice. Appointment Of One Or The Other Judges Of A High Court As Acting Chief Justice Is Meant To Carry On The Work Of The High Court And The Judiciary In The State. May Be Sometimes Appointment Of Chief Justice To A High Court May Take Some Time For Various Reasons And Consequently Acting Chief Justice Continues To Work For Longer Period, But That Itself Does Not Take Away The Powers Conferred By The Constitution On A Judge To Act As Chief Justice To Perform The Duties Of The Chief Justice. Normally The Senior-most Puisne Judge Is Appointed As Acting Chief Justice. Such Puisne Judge Is Expected To Act Appropriately In Discharging The Duties Of The Office Of Chief Justice. It Is Rule Of Prudence That The Acting Chief Justice May Not Take Major Decisions Which Otherwise Could Have Been Taken By The Chief Justice Or Which Decisions Could Wait For A Chief Justice. Assuming That Some Decisions Taken By An Acting Chief Justice Are Required To Be Modified Or Corrected, That Can Be Done Either On Administrative Side Or On The Judicial Side By The High Court Or By This Court Including The Chief Justice Of India, As The Case May Be. In Some Cases If Appointment Of Chief Justice Of A High Court Takes Longer Time And The Acting Chief Justices Cannot Discharge The Duties Of The Office Of The Chief Justice The Work Of The High Court Or The State Judiciary Or For The Matter Wherever The Opinion Of Chief Justice Is Required Like The One Under Section 16 Of The Act, It Will Result In Anomalous Position Leading To Paralyzing The Working Or May Be Sometimes Creating A Deadlock. When Article 223 Of The Constitution In Specific Terms Confers Powers On Acting Chief Justice To Discharge The Functions Of The Office Of Chief Justice Without Any Limitation Or Rider, It Cannot Be Accepted That An Acting Chief Justice Cannot Perform The Duties Expected To Be Performed By Him Under Section 16 Of The Act. Consultation With Acting Chief Justice Under Section 16 Of The Act Is To Be Taken As Consultation With The Chief Justice Of A High Court. Powers Conferred Under Article 223 Of The Constitution On An Acting Chief Justice To Perform The Duties Of The Chief Justice Is Available For The Purpose Of Section 16 Of The Act."

Thus, We Are Of The Considered Opinion That This Bench Has The Jurisdiction To Decide The Review Applications Filed By The Respondents.
Point No.2 :
Whether The Concession Made Against The Provisions Of Law Is Binding On The Party?
The Review Application Has Been Filed By The State Of U.P. On The Ground That The Chief Standing Counsel Appearing For The State Of U.P. Had No Power Nor Had Any Instructions To Make Any Concession Or To Give A Statement Which Is Contrary To The Provisions Of The Rules.
In B.S.Bajwa V. State Of Punjab, AIR 1999 SC 1510 = (1998) 2 SCC 523, Where The Advocate General Made A Concession To Grant Benefit Of An Earlier Date Of Appointment To An Employee, The Apex Court Has Held That It Was A Concession On Law And Would Not Bind The State Government Or The Other Employees And It Was Open To The State Government To Withdraw The Same By Filing A Review Petition Before The High Court Itself.
In B.S.N.L. V. Subhash Chandra Kanchan, AIR 2006 SC 3335, The Apex Court Has Held That A Wrong Concession On A Legal Question, Would Not Be Binding Upon His Client.
We Find That The U.P.Judicial Service Rules, 2001 Have Been Framed By The Governor In Exercise Of The Powers Conferred By Article 234 And The Proviso To Article 309 Of The Constitution Of India, In Consultation With The High Court And U.P. Public Service Commission. Requirement Of Age Has Been Provided In Rule 10 Of The Rules. Section 35 Of The Rules Provides For Relaxation From The Conditions Of Service. It Does Not Provide For Relaxation Of Age For Appearing In The Examination, Which Is A Stage Prior To Entering Into The Service. The Chief Standing Counsel Who Represented The State Of U.P., Could Not Have Given Such Concession Regarding Relaxation Of Age Which, In Effect, Amounts To Modification Of Rule 10 And Could Not Have Been Done By A Statement Made At The Bar Because The Rules Under Which The Age Requirement Has Been Fixed, Has Been Framed By The Governor In Consultation With The Allahabad High Court And U.P. Public Service Commission And, Without Their Consent, The Provisions Of Rule 10 Could Not Have Been Modified.
In The Case Of Durga Charan Misra (supra) The Apex Court Has Held That Even The Expert Judge Of A High Court Cannot Advise Anything Contrary To The Rules While Selecting Probationer Munsif In The State Judicial Service In Orissa, Which Is Not In Accordance With The Orissa Judicial Service Rules, 1964.
In The Case Of Umesh Chandra Shukla (supra) The Apex Court Has Held That The Moderation Of Marks Done At The Instance Of The High Court After Announcing The List Of Candidates Qualified For Viva Voce Test In The Delhi Judicial Service, With A View To Qualify Those Also Who Failed But For One Or Two Marks Only, Being Contrary To The Provisions Of The Delhi Judicial Service Rules, 1990, Cannot Be Held To Be Legal And It Would Be Illegal, Unfair, Arbitrary And Invalid.
Similarly, In The Case Of J & K Public Service Commission (supra), The Apex Court Has Held That The Government Cannot Use Its Executive Power To Circumvent The Requirement Of Statutory Recruitment Rules.
In The Case Of Malik Mazhar Sultan (supra) The Apex Court Has Held That 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 He Is Not Otherwise Eligible According To The Rules. The Relaxation In Age Can Only Be Granted, If Permissible Under The Rules, And Not On The Basis Of Advertisement.
Thus, We Are Of The Considered Opinion That The Concession Made By The Chief Standing Counsel On A Question Of Law, Viz. Relaxation Of Rules, Does Not Bind The State Of U.P., As Such The Application Seeking Review Filed By The State Of U.P. Is Maintainable.
Coming To The Application Seeking Review Filed By The High Court Is Concerned, We Find From The Order Dated 29.11.2006 Passed By The Division Bench Hearing The Case Of Sanjay Kumar Pathak (supra) That The Arguments Were Heard At Length On Almost All The Points And The Matter Was Adjourned Only To Enable The State To File Its Affidavit And To Take Further Instructions With Regard To Relaxation Of Age Of The Candidates. The Order Dated 29.11.2006, Which Is Self-explanatory, Is Reproduced Below:-
"After Hearing At Length Almost On All The Points, We Find That State Is Eager To File Its Affidavit And Take Further Instruction With Regard To Relaxation Of The Age Of The Candidates To Sit For The Examination - 2006 For The State Judicial Service. Although It Appears To Us That Filing Of Affidavit After Full Length Hearing Is Formality, Yet We Direct The Parties To Exchange The Affidavits Particularly When The High Court, State And Public Service Commission Are The Parties. Therefore, Such Counter Affidavit Will Be Filed By 6th December, 2006. Rejoinder, If Any, Will Be Filed By 11th December, 2006. The Matter Will Be Heard On 12th December, 2006.
Apart From Filing Of The Affidavit Learned Standing Counsel Will Take The Necessary Instruction In Respect Of Relaxation Of Age Of The Candidates Since Such Power Lies Upon The State.
The Matter Is Treated As Heard In Part And It Is To Be Listed As Item No.1 Of The Main Cause List. For The Time Being The Petitioner's Claim Will Not Be Treated To Be Rejected."

From A Reading Of The Aforesaid Order We Are Of The View That As The Arguments Were Heard At Full Length, Under Some Misapprehension, While Passing The Final Judgment And Order, It Was Mentioned That Sri Amit Sthalkar Has Not Advanced Any Argument. It May Be True That On Subsequent Date He Might Not Have Advanced Any Arguments But As All The Arguments Were Advanced On Earlier Date, I.e., 29.11.2006, It Ought To Have Been Considered.
Coming To The Review Application Filed By The Commission We Find That The Plea Of Jurisdiction Of The Bench For Hearing The Matter Was Raised And The Division Bench Hearing The Case Of Sanjay Kumar Pathak (supra), Had Considered This Objection Raised By The Commission's Counsel And Had Negatived It. We Are Not Inclined To Go Any Further In This Matter.
In View Of The Foregoing Discussions, The Review Applications Filed By The State Of U.P. And The High Court Are, Therefore, Allowed. The Review Application Filed By The Commission Is Rejected.
Merits Of The Case :
Coming To The Merits Of The Case, We Find That The U.P.Judicial Service Rules, 2001 Have Been Framed By The Governor In Exercise Of The Powers Conferred By Article 234 And The Proviso To Article 309 Of The Constitution Of India, In Consultation With The High Court And U.P. Public Service Commission. It Relates To Group A And Group B Services Of The U.P. Judicial Service. The Challenge To Clause (m) Of Rule 4 Which Defines ''year Of Recruitment', On The Ground That It Is Arbitrary And Violative Of Articles 14 And 16 Of The Constitution Of India As In Respect Of Other State Services, ''year Of Recruitment' Has Been Differently Defined, Has No Legs To Stand. Each Cadre Of The State Government Employees Forms A Different Class By Itself And Merely Because In Some Of The Service Rules, Relating To A Particular Class Of Government Employees, It Has Been Differently Worded, It Would Not Make The Definition Of The Words ''year Of Recruitment' Contained In Rule 4(m) Of The Rules Violative Of Articles 14 And 16 Of The Constitution Of India. The Learned Counsel For The Petitioner Have Failed To Establish Any Hostile Discrimination Or Arbitrary Classification In The Rules. The Question Of Reading Down The Said Provision Also Does Not Arise. Even Otherwise, The Provisions Of Rule 4(m) Are Clear And Specific And There Is No Ambiguity.
Sofaras The Contention That The Persons Who Were Eligible In The Recruitment Years, I.e., 1.7.2003 To 30.6.2004, 1.7.2004 To 30.6.2005, 1.7.2005 To 30.6.2006 And 1.7.2006 To 30.6.2007, Have Been Denied A Chance Is Concerned, We May Mention Here That In The Previous Examination Of 2003, Which Was Held Some Times In March, 2004, In View Of The Decision Of The Apex Court, All Those Candidates Who Were Eligible On 1.7.2002, 1.7.2003 And 1.7.2004, Have Been Held To Be Eligible In That Examination. The Grievance, If Any, Of Those Candidates Who Became Ineligible On 1.7.2005 And 1.7.2006, Is Without Any Legal Basis As The Provisions Of Rule 4(m) Of The Rules Which Defines ''year Of Recruitment' To Mean A Period Of 12 Months Commencing From First Day Of July Of The Calendar Year In Which The Process Of Recruitment Is Initiated By The Appointing Authority, Is To Be Taken From 1.7.2006, As, In The Present Case, The Process Of Recruitment Has Been Initiated By Sending The Requisition By The State Government To The Commission In August, 2006 For Filling Up The Vacancies. The Earlier Correspondence Regarding Determination Of Vacancies Entered Into By The State Government With The High Court Commencing From 30.12.2004, Cannot Be Treated As The Date For Initiating The Process Of Recruitment. The Apex Court In The Case Of Malik Mazhar Sultan (supra) Has Held That The Process Of Recruitment Is Initiated On Sending The Communication By The State Government To The Commission For Filling Up The Vacancies. The Eligibility Criteria Regarding Age, In The Present Case, Is To Be Governed By The Main Provisions Of Rule 10 Of The Rules And As The Examinations Has Been Held During The Year Of Recruitment, The Second Proviso Would Not Be Attracted. It May Be Mentioned Here That The Apex Court, In The Case Of Malik Mazhar Sultan (supra), Has Considered The Provisions Of Rule 4(m) And Rule 10 Of The Rules And Has Held As Follows:-
"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 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 - Under Main Part Of Rule 10 And Two - 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 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)."

Thus, There Cannot Be Any Dispute That The Age Requirement Has To Be Strictly Determined In Terms Of Rule 10 Of The Rules And If In A Particular Year Of Recruitment Examinations Are Not Held, Then The Second Proviso Would Be Attracted And Its Benefit Has Also To Be Given. No Such Situation Exists In The Present Case As The Process Of Recruitment Has Been Initiated On 23.8.2006 And Examination Has Also Been Held On 31.12.2006. The Second Proviso To Rule 10, Thus, Would Not Be Attracted At All. We May Mention Here That It Appears That No Process Of Recruitment Was Initiated By The State Government During The Period 1.7.2001 To 30.6.2002 And That Is Why The Commission While Making The Advertisement On 22/28.11.2003 For 347 Posts, Had Specified That The Candidates Who Were Within Age Between 1.7.2001 To 1.7.2002, Shall Also Be Treated As Within Age. This Concession Was Not Approved By The Apex Court In The Case Of Malik Mazhar Sultan (supra) And The Apex Court Had Held That The Recruitment To The Service Could Only Be Made In Accordance With The Rules. While Interpreting The Rules, Namely, Rule 4(m) And Rule 10 Of The Rules, The Apex Court Had Come To The Conclusion That Only The Candidates Who Were Eligible On 1.7.2002 Till 1.7.2004 Would Be Eligible To Be Considered For Appointment To The Post Of The Civil Judge (Junior Division). Thus, The Plea That The Candidates Who Were Eligible On 1.7.2005 To 30.6.2007 Should Have Been Treated To Be Within Age Requirement, Cannot Be Accepted. If, In Any Year, The Process Of Recruitment Has Not Been Initiated, The Benefit Of The Second Proviso To Rule 10 Would Not Be Available For The Purpose Of Computing The Eligibility In Age.
It May Be Mentioned Here That Even Though Under Rule 7 Of Rules, It Is Provided That Competitive Examination Shall Be Held In Every Year Of Recruitment Which Means In That Year As Per Rule 4(m), It Does Not Mean That Examination Are To Be Held In That Year Also Even Though The Process Of Recruitment Has Not Started. The Second Proviso To Rule 10 Has Taken Care Of Cases Where Though The Process Of Recruitment Has Started Yet The Examination Is Not Held In The Year Of Recruitment. No Body Can Claim As A Matter Of Right That The Recruitment On Any Post Should Be Made Every Year. However, This Issue Has Now Become Of Academic Interest As The Apex Court In The Case Of Malik Mazhar Sultan (supra) Has Fixed The Time Schedule For Holding Examinations And For The Entire Recruitment Process, Which Has To Be Strictly Followed.
The Plea That There Was No Consultation By The Governor With The High Court For Leaving The Posts Unfilled Or Hold The Posts In Abeyance And The Process Of Recruitment Ought To Have Been Held Every Year Thus Entitling The Persons Who Have Lost The Chance When The Process Of Recruitment Have Not Been Held, Has No Legs To Stand. Taking Into Consideration The Hardship, The Apex Court In The Case Of Malik Mazhar Sultan (supra) Has Given A Detailed Time Bound Schedule For Filling Up The Vacancies Every Year.
Thus, We Are Of The Considered Opinion That The Cut Off Date For The Age Eligibility Fixed By The Commission Is In Accordance With The Provisions Of Rule 4(m) Read With Rule 10 Of The Rules And The Second Proviso Would Not Be Attracted In The Present Case. It Is Not Necessary For Us To Deal With The Various Case Law Cited By Sri Arvind Srivastava On The Point Of Sub Silentio, Conclusions, Findings Etc.
We Agree With The View Taken By The Division Bench In The Case Of J.P.Tiwari (supra) Which Is In Conformity With The Decision Of The Apex Court In The Case Of Malik Mazhar Sultan (supra).
Before Parting With The Case, We Would Like To Place On Record Our Appreciation To The Valuable Assistance Rendered By All The Learned Counsel Appearing For The Respective Parties In Arriving At Our Conclusions.
In View Of The Foregoing Discussions, All The Writ Petitions Including That Of Sanjay Kumar Pathak Fail And Are Dismissed.
The Review Applications Filed By The State Of U.P. And The High Court Being Civil Misc. Review Application Nos.278540 Of 2006 And 1041 Of 2007, Respectively, Stand Allowed.
The Review Applications Filed By The U.P. Public Service Commission, Allahabad, Being Civil Misc. Review Application No.279912 Of 2006, Is Dismissed.

Go to Navigation