Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : The Interim Order Refused In P.C.S.(J) Examination, Writ Petition Dismissed.
JUDGEMENT TITLE : Jai Prakash Tiwari And Others Vs. State Of U.P. And Others On 02/11/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 59653 OF 2006
CORAM : Hon'ble Sushil Harkauli,J. And Hon'ble Pankaj Mithal,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD


Court No. 36

Civil Misc. Writ Petition No. 59653 Of 2006
Jai Prakash Tiwari & Others Vs State Of U.P. & Others
Connected With
Civil Misc. Writ Petition No. 59950 Of 2006
Satish Chandra Singh Vs State Of U.P. & Others
Connected With
Civil Misc. Writ Petition No. 59947 Of 2006
Umesh Chandra Jaiswal Vs State Of U.P. & Others
Connected With
Civil Misc. Writ Petition No. 59948 Of 2006
Gopal Krishna Tiwari & Others Vs State Of U.P. & Others
Connected With
Civil Misc. Writ Petition No. 59981 Of 2006
Ajay Pratap Rao & Others Vs State Of U.P. & Others
Connected With
Civil Misc. Writ Petition No. 59809 Of 2006
Ram Shankar Yadav & Another Vs State Of U.P. & Others
Connected With
Civil Misc. Writ Petition No. 59301 Of 2006
Surendra Singh Vs U.P. P.S.C. & Another
Connected With
Civil Misc. Writ Petition No. 27242 Of 2006
Devendra Nath Tiwari Vs State Of U.P. & Others
................


Hon'ble Sushil Harkauli, J.
Hon'ble Pankaj Mithal, J.


This Bunch Of Writ Petitions Has Been Filed To Challenge The Advertisement Issued By U.P. Public Service Commission, For Holding Examination For Selections To The Posts Of Civil Judge (Junior Division) In The State Of Uttar Pradesh. The Writ Petitions Raise Some Common Questions, And Certain Writ Petitions Raise Some More And Other Questions. They All Have Been Heard Today And Therefore Are Being Disposed Of By This Common Judgment.

The Selection To The U.P. Judicial Service For The Post Of Civil Judge (Junior Division) Which Is The Lowest Post In The Judicial Hierarchy Of State Is Held Under The U.P. Judicial Service Rules 2001 Framed Under Article 234 Read With The Proviso To Article 309 Of The Constitution Of India.

Point No. 1.
The First And The Common Issue In Most Of The Writ Petitions Is About The Date On Which The Candidate Must Not Have Crossed The Prescribed Upper Age Limit Of Eligibility For Appearing At The Examination.





For Answering This Question Certain Rules Which Are Relevant, Are Being Quoted Below:

Rule 4(a) "Appointing Authority" Means The Governor Of Uttar Pradesh.

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;

Rule 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.

Rule 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.

The Appointing Authority I.e. Governor Of State Has Only One Function To Perform In Initiation Of "the Process Of Recruitment", And That Is To Require The U.P. Public Service Commission (hereinafter Referred For Short As The Commission) To Hold Recruitment To The Vacancies Mentioned In The ''requisition.' This Is Done Under Rule 15. Thereafter, The Appointing Authority Does Nothing Till The Final Select List Is Forwarded To The Appointing Authority By The Commission. Then The Appointments Are Made By The Appointing Authority. Therefore, The Words "process Of Recruitment Is Initiated By The Appointing Authority" Occurring In Rule 4 (m) Can Only Mean The Date On Which The ''requisition' Is Sent By The Governor To The Commission Under Rule 15.

In The Present Case There Is No Dispute That The ''requisition' Was Sent In August 2006. Thus, There Can Be No Dispute That The "year Of Recruitment" In The Present Case Is 1.7.2006 To 30.6.2007, Under Rule 4(m). Further, Under The First Part Of Rule 10, The Notification For Holding The Examination By The Commission Inviting Applications, (hereinafter The Said Notification Is Referred To As ''advertisement' For Short) Was Published In October 2006.

The Next Point To Be Examined In The Recruitment Under Challenge Is As To Which Candidates Are Within Upper Age Limit Of 35 Years In Case Of General Candidates And Within 40 Years In Case Of Candidates Belonging To Reserved Categories. The Relevant Date For Judging This Age Wise Eligibility Is 1.7.2007 According To First Part Of Rule 10, Which Says That Eligibility Has To Be Seen On The First Day Of July Next Following The "year" In Which The Advertisement Is Issued.

Now Comes The Crucial Part I.e. Interpretation And Effect Of The Second Proviso To Rule 10. For Clarity, This Second Proviso Can Be Broken Down Into The Following Distinct Ingredients:
(1) First It Has To Be Seen As To Whether The Candidate Concerned Was Eligible In Age To Appear At The Examination In Any "year Of Recruitment;"
(2) Then It Has To Be Seen Whether An Examination Was Held In That ''year Of Recruitment' Or Not;
(3) If No Examination Was Held, In The Year Of Recruitment, The Candidate In Clause (1) Above Will Continue To Be Eligible In Age To Appear Whenever The Examination Is Held Next.

Simply Put The Above Three Parts Represent The Correct And Complete Meaning And Effect Of The Said Proviso, Provided The Same Is Construed Objectively, Reasonably, Rationally And Without The Confusion During Todays Multiple Arguments.

The Learned Counsel For The Petitioners In The Writ Petitions Raising The Issue Of Upper Age Limit Contended That All Such Candidates Who Were Within Upper Age Limit On 1.7.2006 Should Also Be Treated To Be Eligible To Appear In The Recruitment Examination. On The Other Hand The Impugned ''advertisement' Of The Commission Says That Only Those Candidates Would Be Eligible To Appear In The Examination Who Were Within The Age Limit On 1.7.2007. Thus, The Issue Affects Only The Candidates Who Crossed The Upper Age Limit Between 1.7.2006 And 1.7.2007.

The Writ Petitions Were Opposed By The Learned Counsel For The Commission, Learned Counsel Appearing For The High Court And The Learned Counsel Appearing For The State, On The Ground That Reference To The Second Proviso Above Is Premature, In As Much As, The Examination In All Probability Will Be Held In The Current ''year Of Recruitment' I.e. Between 1.7.2006 To 30.6.2007. It Has Been Stated By The Learned Counsel Appearing For The Commission That Examination Schedule Has Already Been Issued By The Commission According To Which The Examination Will Be Held Within This Recruitment Year.

As Against This The Petitioners Side Argued That They Are Relying Upon The Second Proviso As Interpreted By The Decision Of The Supreme Court In The Case Of Malik Mazahar Sultan Vs U.P.P.S.C. Reported In (2206) 2 UPLBEC 1603 For The Purpose Of Showing That The Said Proviso As Interpreted In The Said Decision Would Necessarily Require The Main Part Of Rule 10 To Be Interpreted Not As "first Day Of July Next Following The Year", But As The "first Day Of July Falling In The Year" In Which The Advertisement Was Issued. It Has Been Suggested That This Interpretation Of The Main Part Of Rule 10, Although In Direct Conflict With The Words Used Therein, Is The Only Way Of Avoiding The Anomaly Which Would Otherwise Result, And Which Is Described Below:
Anomaly As Argued :
In The Above Decision Of The Supreme Court In Paragraph 27 Of The Aforesaid Law Report, The Supreme Court Said While Applying The Second Proviso To Rule 10 That The "year Of Recruitment" In That Case Was 1.7.2002 To 30.6.2003 And The Age Requirement Therein Would Be Seen As On 1.7.2002, Which Is 1st Of July In The Beginning Of The Year Of Recruitment And Not The 1st Of July Next Following The Year Of Advertisement.

Normally, The Advertisement Is Almost Always Issued In The ''year Of Recruitment' I.e. The Year (meaning July To June) In Which The Requisition Is Sent By The Governor To The Commission. Therefore The "first Date Of July Next" Used In The First Part Of Rule 10 Is Almost Always Is The 1st Of July Immediately Following The ''year Of Recruitment.'

The Learned Counsel For The Petitioners Suggested That Where An Examination Is Delayed Beyond The Year Of Recruitment, The Supreme Court Judgment Says That All Such Candidates Who Were Within Upper Age Limit On The First Day Of July Not Next, But Falling In The ''year Of Recruitment' I.e. Preceding The Advertisement Would Be Treated To Be Within Age Limit, While On The Other Hand If Examination Is Held Within Recruitment Year, Such Candidates Would Be Deemed To Be Over Age Under The Main Part Of Rule 10. This In Effect Would Mean That The Candidates Who Are Over Age If Examination Is Held Timely Would Become Underage (or Within The Age Limit) If The Examination Is Delayed. According To The Learned Counsel For The Petitioner Such Anomaly Should Be Avoided.

The Respondents Have Argued That It Has Been Held By The Supreme Court Itself That The Words In A Supreme Court Decision, Are Not To Be Applied And Interpreted Like Words Of A Statute. The Decision Has To Be Read As A Whole For Finding Out What Is Ratio Laid Down By The Supreme Court. Reading The Supreme Court Decision As A Whole Along With Main Part Of Rule 10 And Its Second Proviso, It Has Been Argued From The Respondents Side That The Clear Intendment Was To Allow The Eligibility Only Of Eligible Candidates To Continue If The Examination Is Delayed. The Intendment Was Not To Allow Ineligible Candidates To Become Eligible Because Of The Delay In Holding The Examination. It Was Also Suggested By The Respondents Side That Read With Para 24 Of The Law Report, The Mention Of 1st July 2002 In The Supreme Court Decision Appears To Be A Calculation Or Clerical Error, Which Could And Should Have Been Got Clarified Or Rectified, But Not Got Rectified, Due To Reasons Not Clear.

The Substance Of The Arguments From The Side Of The Petitioners, Bereft Of Rigmarole Arguments And Ingenious Reasoning, Can Be Simply Stated As Follows. ''Because Of The Interpretation Of The Second Proviso Given By The Supreme Court In The Case Of Malik Mazhar Sultan (supra), The First Or Main Part Of Rule 10 Should Receive From This Court, An Interpretation Different From The Interpretation Expressly Given To That Part By The Supreme Court In The Same Case.' This Obviously Can Not Be Done By This Court. We Extract And Quote The Relevant Words In The Aforesaid Supreme Court Decision On This Point :
"The Year Of Recruitment Has Thus Been Rightly Determined As 1st July, 2002 To 30th June 2003, Having Regard To Rule 4 (m)." (see Para 25 Of The Law Report)
"Under The First Part, Therefore, The Relevant Date For Determining Age Would Be 1st July 2004." ....... "The Examination In The Year Of Recruitment Was Not Held. ...... In Such A Situation, Candidates Would Be Entitled To Benefit Of Age Requirement In Terms Of Second Proviso." (para 26 Of The Law Report)

However, At Present It Is Not Necessary To Examine The Above Rival Submission Because As Suggested From The Respondents Side The Situation Has Not Arisen As Yet For Applying Second Proviso Because The Examination Has Not Been Delayed Beyond The ''year Of Recruitment' Which As Stated Above Is 1.7.2006 To 30.6.2007. The Question Raised Is Hypothetical And Merely Academic.

Sub-point No. 1-A.
In The Same Context It Has Been Argued From The Petitioners Side In Some Of The Writ Petitions That Rule 7 Read With Rule 15 Suggests That The Examination For The Selection Should Be Held By The Commission Every Year And If The Examinations Are Not Held, The Second Proviso Should Be Applied Deeming Every Year To Be The "year Of Recruitment", Irrespective Of The Issue Of The ''advertisement' Or Sending Of ''requisition' By The Governor. We Are Unable To Read The Said Rule 7 Or Rule 15, Or Two Rules Together, As Suggested. Rule 7 Is Quoted Below:
Rule 7. Source Of Recruitment.- 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. (emphasis Ours)

This Rule Only Says That The Examination Shall Be Held In Every "year Of Recruitment" And Not In "every Year" I.e. Every ''calendar Year.' Besides, Rule 6(iii) Of The Rules Says That "the Governor May From Time, To Time In Consultation With The Court, Leave Unfilled Or Hold In Abeyance Any Post ................"

Even Otherwise It Is Obvious That If The Availability Of Vacancies In Any Year Is Not Adequate Or Too Minimal To Warrant The Massive Exercise Of Recruitment, Causing Large Number Of Candidates To Spend Their Time, Money And Energy, It Would Not Be Desirable To Interpret The Rules To Mean That Even If There Are Only One Or Two Vacancies The Burdensome Process Of Selection Should Be Gone Through. This Is Basically In The Discretion Of The Appointing Authority, In Consultation With The High Court.

Sub-point No. 1-B.
From The Side Of The Petitioners, It Has Been Suggested That 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 Authority, In All Cases Where Vacancies Are Existing And Yet Recruitment Process Is Not Initiated. We Are Unable To Find Out Any Good Reason To Do So.

Point No. 2.
Another Contention Raised In One Of The Writ Petition Was That A Full Bench Of This Court In The Case Of Sarika Vs State Of U.P. Reported In 2005 (4) ESC 2378, In Paragraph 50 Of The Law Report Directed That The State Government Should Identify Group-A & Group-B Posts In All Services For Reservation For Physically Disabled Persons As Expeditiously As Possible As Also For The Posts Of Civil Judge (Junior Division) After Consultation With The High Court. The Contention Specifically Is That Because This Identification Has Not Been Done So Far, Therefore, The Recruitment To The U.P. Judicial Service Should Be Held In Abeyance. The Full Bench, In Its Wisdom Did Not Go That Far, So As To Say That All The Recruitment Of Group-A & Group-B Posts In The Govt. Services Should Be Kept In Abeyance Till The Process Of Identification Is Completed And Till Reservation Is Provided To Physically Handicapped Persons. We See Cogent Reason To Go Farther Than The Full Bench, Particularly Considering The Fact That There Is An Acute Shortage Of Judicial Officers In The State Of U.P. At The Lower Levels. Thus We Are Of The Opinion That It Would Not Be Desirable To Hold Up The Selection And Appointments On That Ground.

Point No. 3.
Another Contention In Some Of The Writ Petitions Is That The Advertisement Issued By The Commission Says That The Candidates Should Not Have Crossed The Upper Age Limit On 1.7.2007, But It Has Been Further And Wrongly Clarified In The Following Words Of Advertisement " I.e. They Must Have Not Been Born Before 2nd July 1972".

According To The Contention Raised From The Petitioner's Side In One Of The Petitions, The Petitioner Was Born On 1st Of July 1972, And According To Him, A Person Would Be Within The Upper Age Limit If He Was Born Not Before 1st July 1972.

A Person Born On 1st July Of A Year, Completes The Age Of One Year On The Mid Night Of 30th June Of The Next Year. The Judges Of The High Court And The Supreme Court Retire On The Mid Night Of The Day Preceding Their Date Of Birth On The Above Logic. Having Been Born On 1st July 1972, The Petitioner Will Have Attained The Age Of 35 Years On 30th Of June 2007 And Will Therefore Have Crossed The Upper Age Limit On 1.7.2007. Therefore The Said Contention Of The Petitioner Lacks Merit. The Clarification/condition In Question In The Advertisement Of The Commission Is Correct.

Point No. 4.
It Was Stated At The Bar That In A Writ Petition No. 59064 Of 2006 Jai Prakash Gupta Vs State Of U.P., A Division Bench Of This Court Has Called For A Counter- Affidavit And Has Passed An Interim Order For Accepting The Application Form Of The Petitioner Of That Petition, Subject To Writ Petition, And That The Said Petition Raises The Questions At Point No. 1 & 3 Above. An Uncertified Copy Of The Interim Order Was Produced. The Interim Order Does Not Contain Any Reasons. In Any Case, The Pendency Of That Petition Cannot Restrain This Bench From Dealing With The Arguments Raised In The Present Petitions And From Giving A Final Decision.

In The Circumstances, All The Contentions Raised From The Petitioners Side Fail And Accordingly All The Writ Petitions Are Dismissed.

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