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ASHOK KUMAR MISHRA versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Ashok Kumar Mishra v. State Of U.P. And Another - WRIT - A No. 36676 of 2004 [2004] RD-AH 744 (9 September 2004)

 

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 of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 36676 OF 2004

Ashok Kumar Mishra -------- Petitioner

Versus

State of U.P. & Anr. ------- Respondents

______________

Hon'ble Dr. B.S.Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for issuing directions to the respondent Public Service Commission, Uttar Pradesh to permit the petitioner to appear in the main examinations of the U.P. Judicial Service Civil Judge (Junior Division) 2003.

The facts and circumstances giving rise to this case are that petitioner is an Ex Army officer and had applied in pursuance of the advertisement dated 20-28 November, 2003 (Annex. 2) for the appointment of Civil Judge (Junior Division). Petitioner is not being permitted to appear in the main examination likely to be held very soon. He submitted that the advertisement dated 22-28 November, 2003 (Annex. 2) provided for eligibility in age as per the statutory provisions, 22 years as minimum and 35 years as maximum as on 1.7.2004. However, relaxation would be granted for a period of five years in favour of certain reserved categories, including the Ex-Army men. The advertisement also mentioned that as per the provisions of U.P. Judicial Service (Amendment) Rules 2003 those candidates who were within the age as on 1st July, 2001 and 1st July, 2002 would be treated within the age for this examination as the examinations for the said posts could not be held in those years.  The date of birth of the petitioner is 14.2.1964. Thus, the petitioner completes the age of 35 years as on 13th February, 1999, and if five years relaxation is granted, he can be eligible upto 13th February, 2004. The advertisement required a person to be 40 years of age in case  five years relaxation is granted as on 1st July, 2004. Admittedly, petitioner is overage by simple calculations. His candidature has not been considered being over age.

However, the learned Standing Counsel appearing for respondent has submitted that the relaxation under the provisions of amended Rules, 2003 making the candidates eligible who had been within age as on  1st July, 2001 and 1st July, 2002, for the reason that examination was not held, is meant only for those who are not seeking any kind of other relaxation and it is not meant for a person who is above 40 years of age, and has already taken the benefit of relaxation of five years being a candidate of reserved category.

We have considered the submission made by the petitioner in person and the learned Standing Counsel appearing for respondent and perused the record.

The only controversy involved herein is as to whether petitioner is within the age as per the rules applicable in the instant case.

Petitioner admittedly completed 40 years on 13.2.2004 and wants to take the benefit of relaxation as per the amended Rules 2003 in addition to five years relaxation for the reason that the Rules as well as the advertisement provided relaxation of age of five years in case a scheduled, scheduled tribe and OBC candidates.

Take a case where a candidate is a scheduled caste and ex serviceman and is aspirant to sit in the main examinations to be held now, whether it is permissible in law to get the relaxation of age i.e. 5 years; being scheduled caste candidate and 5 years, for being an ex service man and further relaxation as per the provisions of Amended Rules 2003. By the said amendment of the Rules 2003, Rule 10 of the U.P. Judicial Service Rules, 2001 was amended providing relaxation in the age in case the examination is not held in a particular year. If such an interpretation is given, a person who is 40 years of age and fulfils these conditions shall be eligible for appointment over and above 50 years of age as the Selection process will take some time. Retirement age is 60 years. We fail to understand for whose benefit such an appointment should be made. The advertisement itself made it clear that no person shall be entitled for more than one benefit. He can take benefit of one of the reservations/relaxations whichever is more beneficial to him.

Learned Standing Counsel placed reliance on the judgment of the  Hon'ble Supreme Court in  Government  of Orissa Vs.  Haraprasad Das & Ors., AIR 1998 SC 375, wherein it has  held as under:-

"Whether  to  fill up a post or not is  a  policy decision and unless it is shown to  be  arbitrary,  it  is not  open  to  the Tribunal  to interfere with such decision  of  the Government and direct it to  make further  appointments.   The Tribunal  in directing  the Government to make further appointments  on the efficiency ground of  public  administration  went  beyond  its jurisdiction."  

Similarly  the  Apex  Court in  State  of  Haryana  & Ors. Vs.  Piara Singh & Ors., AIR 1992 SC 2130,  has  taken the  view  that creation and abolition  of  post and  filling up the same is the prerogative  of the Executive.

The Hon'ble  Apex  Court in J  &  K Public Service Commission  & Ors.   Vs.   Dr Narinder Mohan & Ors., (1994) 2 SCC 630,  has observed as under:-

"It is difficult to accept the contention of  Shri Rao to adopt the chain system of  recruitment  by  notifying   each  year's vacancies  and  for  recruitment  of  the candidates   found  eligible    for   the  respective  years.   It would be  fraught with  grave consequences.  It is  settled  law   that   the   Government  need not  immediately  notify vacancies as soon  as  they  arose. It  is open, as  early  as   possible,   to  inform  the vacancies  existing  or  anticipated to the PSC  for  recruitment  and  that   every   eligible person is entitled to apply for and to be  considered  of his claim for  recruitment   provided  he  satisfies   the  prescribed  requisite  qualifications.   Pegging  the recruitment in chain system would deprive all the eligible candidates as on date of  inviting   application   for  recruitment offending Articles 14 and 16."

In  Union of India & Anr. Vs.  Yogendra  Singh, 1994  (Suppl.)  2  SCC   226,  the  Hon'ble Supreme Court  has  held that the applicant  must possess the  requisite  qualification as per  the advertisement,  even if the vacancies have arisen  prior to  the date of the advertisement.  In  the  said judgment   the   Hon'ble   Apex  Court   has categorically held as under:-

"No candidate who does not possess the currently prescribed qualification and he possess   the   qualification  prescribed  earlier,  can be said to be qualified or have any vested right to appointment even  against  some earlier unfilled vacancies.  Every  candidate, who aspires to fill any vacancy, must  possess  the  educational  qualification that are then prescribed."

The judgments referred to above as relied upon by the learned Standing Counsel are not applicable in the instant case for the reason that the rules have been amended in 2003 giving relaxation of age for the year the examination is not conducted. In the instant case, the advertisement itself clearly stipulated that no candidate shall be eligible for more than one relaxation and the candidate can take the benefit of relaxation which is more beneficial to him. The said stipulation requires strict interpretation and in case petitioner has taken the benefit of being an ex- service man and relaxation of five years of age, he cannot be permitted to take the benefit of other relaxation, i.e., for the year the examination was not conducted.

We do not find any cogent reason to interfere in the matter. Petition is devoid of any merit and accordingly dismissed.

9.9.2004

AKSI


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