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Dinesh Pratap Singh And Others v. State Of U.P. And Others - WRIT - A No. 40058 of 2005  RD-AH 4576 (21 October 2005)
Civil Misc. Writ Petition No. 40058 of 2005
Dinesh Pratap Singh and others Versus State of U.P. and others
Civil Misc. Writ Petition No. 40594 of 2005
Satendra Singh Birwan and others Versus State of U.P. and others
Civil Misc. Writ Petition No. 40759 of 2005
Kamlesh Kumar Singh and others Versus State of U.P. and others
Civil Misc. Writ Petition No. 43270 of 2005
Sayed Parvazul Hasan Versus State of U.P. and others
Civil Misc. Writ Petition No. 47485 of 2005
Fareeda Begum Versus State of U.P. and others
Civil Misc. Writ Petition No. 49526 of 2005
Kaushal Kishore Mishra Versus State of U.P. and others
Civil Misc. Writ Petition No. 49772 of 2005
Shambhu Nath Pandey Versus State of U.P. and others
Civil Misc. Writ Petition No. 52182 of 2005
Lakshmi Kant Mishra and others Versus State of U.P. and others
Civil Misc. Writ Petition No. 52446 of 2005
Attequddin Versus State of U.P. and others
Civil Misc. Writ Petition No. 52763 of 2005
Smt. Sandhya Srivastava and another Versus State of U.P. and others
Hon'ble Sushil Harkauli, J.
Hon'ble G.P. Srivastva, J.
(Delivered by G.P. Srivastva, J.)
All the above writ petitions involve common questions and are therefore being decided by this common judgment.
The genesis :
The U.P. Public Service Commission (hereinafter referred to as the Commission) held the U.P. P.C.S. (J) Examination - 2003 (hereinafter referred as the 2003 recruitment) for recruitment to 347 posts of Civil Judges (Junior Division) to the U.P. Judicial Service. The petitioners have challenged the order of the Commission cancelling their candidature for the 2003 recruitment. The candidature was cancelled on the ground that these candidates were overage and therefore not eligible to appear at the said examination.
For appreciating the controversy, it is necessary to give few facts and the history of the Rules involved.
Prior to the disputed 2003 recruitment, the last recruitment was held in the calendar year 2000. The advertisement issued by the Commission for the year 2003 recruitment permitted all the candidates who were age-wise eligible in the calendar years 2001 and 2002 to apply. Written examinations were held and when the interviews were going on, one of the members of one of the Interview Boards who happened to be a Judge of this Court noticed the irregularity and sent a letter to the Commission pointing out the error. Upon considering that letter, the Commission came to the conclusion that it had committed an error while issuing the advertisement and, as such, it cancelled the candidature of about 80 candidates including the petitioners on the ground that they were overage and, therefore, ineligible to appear at the examination. Admittedly, no opportunity of hearing was given by the Commission to such candidates before cancelling their candidature. Hence, such candidates filed this bunch of writ petitions challenging the cancellation of their candidature.
We have hard learned counsel for the petitioners, the learned Additional Advocate General Sri Sudhir Agrawal representing the High Court and the State of Uttar Pradesh and the learned counsel representing the Commission. Affidavits have been exchanged and the facts are not in dispute.
From the side of the petitioners, the main arguments were advanced by Sri Ravi Kant, Senior Advocate and Sri Ashok Khare, Senior Advocate.
Technical objection :
The initial thrust from the petitioners' side was that a member of an Interview Board had a limited jurisdiction namely to judge the calibre of a candidate and to award marks at the interview, and such member had no right to go into the age-wise eligibility not only of the candidate before him but also of other candidates. The second argument from the petitioners' side was that the candidature of the petitioners could not have been cancelled by the Commission, at such a belated stage in the midst of the competitive examination/interview, and that too without affording an opportunity of hearing to the concerned candidate.
We have considered these contentions and even during the course of arguments, we had made it known to the learned counsel for both sides that both these contentions were in the ultimate analysis merely technical in nature. It is obvious that if the writ petitions were to be allowed on such technical grounds and some of the petitioners do get selected and appointed to the public posts of judicial officers, a writ petition seeking quo warranto may lie on the ground of ineligibility and in the quo warranto proceedings the concerned candidate would have necessarily to justify his age-wise eligibility with reference to the service Rules only and no other defence would be permissible. It is well settled that if there is a conflict between the terms of advertisement issued by the Commission and the service Rules framed under Article 309 of the Constitution of India, the service Rules must prevail. Allowing candidates to plead estoppel on the basis of the Commission's advertisement or the consequent prolonged participation of candidates in the competition, would amount to allowing the Commission to alter the service Rules, which it has no power to do. Besides it may be difficult to bind the Appointing Authority by estoppel based on an error by the Commission.
It is more than likely that some of the advanced age candidates may already be in employment at other places. If selected, they would have to resign from their existing employment for joining the judicial service, and if they get removed from judicial service by quo warranto, they may not be able to get back the service from where they have resigned. Therefore, the present stage is a better and more appropriate stage for determining the eligibility of these candidates on merits with reference to the Rules alone, instead of deciding these writ petitions on the basis of the technical grounds referred above.
We may mention here that both the learned senior counsel from the petitioners' side were fair enough not to persist in the technical objections and advanced their remaining arguments with reference to the Rules and the suggested interpretation of those Rules.
The Rules :
In the State of Uttar Pradesh, the judicial service subordinate to the High Court consists of two cadres namely, the "U.P. Judicial Service" (also called the Nyayik Sewa) and the "U.P. Higher Judicial Service". Here we are not concerned with the Higher Judicial Service which is governed by a different set of Rules.
The recruitment to the U. P. Judicial Service was earlier governed by the U.P. Nyayik Sewa Niyamavali, 1951 (hereinafter referred to as the 1951 Rules). According to Rule 11 of that Niyamavali, the upper age limit for a candidate to appear at the competitive examination for the recruitment to the post of Civil Judge (Junior Division), formerly known as Munsifs, was 30 years which was later enhanced to 32 years.
Further, according to the said Rule 11 the upper as well as lower age limit of candidates was to be seen as on the 1st day of January next following the date of announcement of the competitive examination by the Commission.
The second proviso to Rule 11 stated that a candidate who would have been entitled to appear at the examination in any year in which no such examination was held, shall be deemed to be eligible in respect of the age, to appear at the next following examination. For convenience, the entire Rule 11 of the 1951 Rules, as it stood originally, is quoted below:
"11. Age- No person shall be recruited to this service who is more than 30 years or less than 22 years of age on the first day of January next following the date of announcement of the examination by the Commission for the recruitment to the service.
Provided that the upper age-limit shall be greater by five years in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes.
Provided further that if a candidate would have been entitled in respect of his age to appear at such an examination in any year in which no such examination was held, then he shall be deemed to be entitled in respect of his age to appear at the next following examination."
The 1951 Rules were later replaced by the Uttar Pradesh Judicial Service Rules, 2001 (hereinafter referred to as the 2001 Rules).
Under Rule 4(a) of the 2001 Rules, the 'Appointing Authority' is defined to mean the Governor of Uttar Pradesh and under Rule 4(m) 'year of recruitment'' is defined 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.
The Appointing Authority, under the 2001 Rules, performs two functions relating to recruitment. The first function is under Rule 15, which provides that the Governor in consultation with the High Court determines and intimates to the Commission, the number of vacancies to be filled during the year of recruitment. The second function of the Appointing Authority under Rule 21 is making the appointments from out of the select list submitted to the Appointing Authority by the Commission.
Therefore, the words 'initiated by the Appointing Authority' used in Rule 4(m) can only mean the intimation by the Governor to the Commission of the number of vacancies to be filled during the year of recruitment.
Rule 10 of the 2001 Rules and more specifically its second Proviso is the provision which requires interpretation. Therefore, the said Rule is reproduced below:
"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."
Before proceeding further it may be mentioned that in the above Rule 10 as originally drafted and published, the age limit had to be seen on the first day of January next following the year in which the advertisement was issued by the Commission. Subsequently, the Rule was amended and now ''January' has been replaced by ''July'.
It will be noticed upon comparison of the second proviso to Rule 10 of the 2001 Rules with the second proviso to Rule 11 of the 1951 Rules that there is a departure from the earlier law, at least in the language deployed.
The difference is that age-wise eligibility will be deemed to continue whenever examination is held next in respect of candidates who were below the upper age limit -
(under 1951 Rules) (under 2001 Rules)
in any (calendar) year in which in any ''recruitment year' in which
no examination was held. no examination was held.
The Petitioners' contention :
Sri Ashok Khare, Senior Advocate attempted to demonstrate that the introduction of the concept of ''year of recruitment' in the 2001 Rules did not bring about any change from the legal position which obtained under the 1951 Rules. He submitted that applying the definition of year of recruitment given in Rule 4 (m) to Rule 7, Rule 15 and Rule 26(2) would lead to results which do not make sense. Assuming for the sake of argument that what Mr. Khare submits is correct, we must not forget that the opening words of Rule 4 are "in these Rules unless the context otherwise requires". But, even if the context otherwise requires in certain Rules, it will not necessarily lead to the conclusion that in the second proviso to Rule 10 also the context requires otherwise. Therefore, we have to consider whether in Rule 10, the definition of ''year of recruitment' can be applied without leading to absurd results.
The interpretation of the Rule 10 :
A careful reading of the 2001 Rules will show that under these Rules only the following two events and their dates are relevant for considering the age-wise eligibility or continued eligibility of candidates :
(1) First is the date and act of the Appointing Authority of intimating vacancies to the Commission under Rule 15. This date and event fixes the period of "year of recruitment" as per Rule 4 (m).
(2) Second is the date and act of publication by the Commission of the notification for holding the examination, inviting applications. This date is relevant for determining the age-wise eligibility in view of Rule 10.
Thus the "year of recruitment" begins from first day of July of the calendar year in which the Appointing Authority intimates vacancies to the Commission with request for making recruitment; such act of the appointing authority will hereafter be called ''requisition' for short. Interestingly, the recruitment period is determined solely with reference to the ''requisition', and if the ''requisition' is sent between July and December, the ''recruitment year' will be deemed to have commenced retrospectively from the preceding first of July.
It is yet more interesting to consider how the Rule 10 and more particularly its second proviso will operate in the various possible situations given below :
(a) If the Commission issues the notification for holding examination inviting applications (hereinafter called advertisement for short) and also holds the examination within the year of recruitment, the age wise eligibility will be seen according to the main part of Rule 10 and its second proviso would not apply to any candidate;
(b) If the Commission issues the advertisement in the year of recruitment but delays holding of examination till after the expiry of the year of recruitment, then also the second proviso would not be material, because the age wise eligibility of a candidate is seen with reference to the advertisement date and has no connection with the examination date;
(c) In view of the above, the only possible meaning that can be assigned to the said second proviso is that will apply only where after the ''requisition' by the Appointing Authority, there is delay beyond the year of recruitment on part of the Commission in issuing the advertisement. In such a situation, only those candidates would continue to be age wise eligible who were so eligible in the ''recruitment year' as distinguished from the 1951 Rules where the benefit of continued eligibility was available even to candidates who were age wise eligible in any calendar year subsequent to the calendar year of the previous recruitment whether such calendar year was or was not ''year of recruitment'.
However, the above interpretation poses the following problem. For finding out who was age-wise eligible in the ''year of recruitment' it is necessary to refer to the date of advertisement (see main part of Rule 10), whereas the second proviso applies only where in fact there was no advertisement. So on a very literal construction no candidate can be said to have been age-wise eligible in the recruitment year. But that would make the second proviso totally redundant.
Therefore, for saving it from redundancy, the only possible interpretation of the Rule 10 would be that in such a situation as is described in para (c) above, only those candidates would continue to be age wise eligible for the delayed examination, who would have been eligible if the advertisement had been issued within the recruitment year. But even this does not solve the problem entirely, because for applying the Rule 10 in this manner, the publication of advertisement within the period of ''year of recruitment' has to be assumed. Now if the advertisement is assumed to have been issued between 1st of July and 31st of December the date for considering the cut off age will be the 1st of July of the next calendar year; whereas if the date of publication in assumed between 1st of January to 30th of June of the same ''year of recruitment', the date for considering the cut off age gets postponed by one full year as per the main part of Rule 10. So, what should be the assumed date of advertisement? The said second proviso to Rule 10 is a piece of beneficient legislation for benefiting certain candidates by removing their upper age disqualification incurred due to delay on part of the Commission and without any fault on their part. Therefore, we would interpret the Rule to mean that such assumed date should be between the 1st of July and 31st December, as that would extend the benefit of the second proviso to larger number of candidates.
Interpreted as above, the 2001 Rules have restricted the benefit of continued upper age-wise eligibility only to candidates who were eligible upper age-wise when the Appointing Authority initiated the recruitment process and the candidates who were eligible age-wise in the earlier calendar years in which no recruitment process was initiated by the Appointing Authority have been deprived of the benefit by the 2001 Rules, in contradistinction to the 1951 Rules.
We are conscious that for the above interpretation we are stretching the language of the Rule and even reading words into it, but in the situation with which we are faced, this Court has two options, one is to strike down the second proviso as being too ambiguous to be implemented and leave it to the Rule making authority to re-frame the Rule fixing the age wise eligibility criteria. However, such a course would mean cancelling of the 2003 recruitment, because no selection can be valid unless the eligibility criteria is fixed. Further, the benefit under the said second proviso would be taken away even from these candidates who were within the age limit during the recruitment year 2003-2004.
The other option is to iron out the creases and to interpret the Rule in a reasonable manner having regard to the obvious object, for the purpose of the 2003 recruitment and to leave it to the Rule making Authority to amend the Rule if the Rule making Authority does not agree with the interpretation of this Court.
We would prefer to adopt the second option considering the fact that after the 2000 examination, no recruitment has been held and, there is an acute shortage of officers in the U.P. Judicial Service. Further, the Supreme Court had desired in its judgment dated 21st March 2002 in the All India Judges Association matter that vacancies in the sub-ordinate Courts should be filled up by 31st March 2003. We are of the opinion that where the purpose and object of a legislation (including subordinate or delegated legislation) is absolutely clear, then notwithstanding the imperfection in the language employed in the legislation, the Court can interpret it so as to give effect to the object and purpose. However, because primarily the intention of the legislator is to be gathered from the words used in the legislation, therefore such method of interpretation is to be adopted in those rare cases where the object and purpose of the legislation is clear beyond reasonable doubt, and adoption of such course is necessary because of the factual circumstances of the nature referred above. Therefore, we have interpreted the second proviso as above to extend its benefit to as many candidates as permissible, because in this case its object and purpose is quite clear and does not admit of any reasonable doubt; and adoption of this method of interpretation is necessary to save the massive exercise of recruitment of judicial officers and to meet the acute shortage of judicial officers in this State.
On facts :
In the light of the above interpretation of the rules, we proceed to examine the facts :
On 23.11.2002, a ''requisition' was sent to the Commission intimating 347 vacancies and requesting the Commission to fill up these vacancies in three phases. The ''requisition' is enclosed as the first annexure to the counter affidavit of Kailash Nath, the Section Officer of U.P. Public Service Commission. The ''requisition' is by the Principal Secretary, U.P. Government on the recommendation of the High Court. It mentions the number of posts to be reserved in respect of all three phases, two of which consist of 100 posts each and the third of 147 posts.
Subsequent to this, there is another ''requisition' again for the same 347 vacancies for filling them up in two phases. The first phase for filling up 174 vacancies and the second for 173 vacancies. This second ''requisition' dated 29.7.2003 has been enclosed as the fourth annexure to the same affidavit of Kailash Nath. This ''requisition' mentions that the ''requisition' for the second phase of 173 posts will be sent at the proper time.
It may be pointed out here that there was no mention of any supporting ''requisition' for the second and third phase in the ''requisition' dated 23.11.2002.
Finally, there is a third ''requisition' dated 10.11.2003 for the same 347 vacancies for filling them up in a single phase. This ''requisition' is enclosed as the fifth annexure of the same affidavit of Kailash Nath.
Admittedly, the Commission is calculating the recruitment year on the basis of this third ''requisition' dated 10.11.2003. The question to be examined is whether the subsequent two ''requisitions' are fresh ''requisitions' or are mere modifications in the original ''requisition' dated 23.11.2002. Having examined the matter carefully and considering the fact that the opening words of the ''requisition' dated 10.11.2003 are that it is in continuation of the ''requisition' dated 23.11.2002 coupled with the fact that it is in respect of the same 347 vacancies, we are of the opinion that the subsequent two letters dated 29.7.2003 and 10.11.2003 are not fresh ''requisition's but are mere modifications of the manner of filling up the same 347 vacancies which were determined by the Governor as Appointing Authority in consultation of the High Court and which were intimated to the Commission in terms of Rule 15 of the 2001 Rules and, therefore, the basic initiation of the recruitment process was done by the letter dated 23.11.2002. Thus, the recruitment year would be 1.7.2002 to 30.6.2003.
The validity of the second proviso to Rule 10 :
Another contention raised from the side of the petitioners is that under the 1951 Rules, all candidates, who were within the upper age limit in any (calendar) year in which no examination was held would continue to be eligible for the next examination and this continued eligibility was irrespective of initiation of recruitment process by the Appointing Authority. Under the new Rules as interpreted by the Commission, such candidates have now been divided into two categories namely, (i) those who were within the age limit in a year in which although process of recruitment was initiated by the Appointing Authority but the Commission did not issue an advertisement and, (ii) those who were eligible in age in a year when neither recruitment process was initiated by the Appointing Authority and obviously no advertisement was issued by the Commission. According to the petitioners, the only object sought to be achieved by the second proviso is to grant the benefit of age relaxation to candidates, who could not appear when they were eligible in age due to non-holding of examination and not due to any fault or inaction on their part. According to the petitioners, the criteria of differentiation between the two categories given above has no nexus with the above object.
In the light of the same object, the petitioners also submit that the second proviso to Rule 10 creates a legal fiction about eligibility and while interpreting the same, the Court must give the fullest possible effect to the fiction, having regard to the purpose of the provision. Reliance has been placed in support this contention upon the decisions of the Supreme Court in the case of (2003) 2 S.C.C. 111- Bhavnagar University Versus Palitana Sugar Mill (P) Ltd., (para 32 and 33), (2003) 5 S.C.C. 521- Manorey Allas Versus Board Of Revenue (U.P.), (2004) 6 S.C.C. 59 - State of West Bengal Versus Sadan K. Bormal, (para 24 to 29).
As against the above, the learned Additional Advocate General has submitted that the U.P. P.C.S. (J) Examination, over the last 20 years have been held for the following years :
1984, 1985, 1986, 1987, 1988, 1989, 1990 - (7 years) - 1997 - (2 years) - 1999, 2000 - (3 years) - 2003.
According to the learned Additional Advocate General, while drafting the 2001 Rules, the gap of 7 years between 1990 and 1997 may have been one of the reasons because of which the benefit granted under the 1951 Rules was confined to that limited section of candidates who lost eligibility by becoming overage subsequent to the year when vacancies were intimated to the Commission by the Governor; and taking away that benefit of age relaxation from candidates who became overage before initiation of recruitment process. According to Sri Agrawal, the Appointing Authority has the discretion not to fill up vacancies or not to hold recruitment. Under Rule 6(3) of the 2001 Rules, the Governor may from time to time in consultation with the High Court leave unfilled or hold in abeyance any post. Sri Ashok Khare countered this argument by submitting that would require a conscious order to that effect and there is no such order in the present case. Having considered the rival submissions, we are of the opinion that even apart from Rule 6 (3), there may well be several other situations in which without the requirement of an express order in that behalf, no recruitment process is initiated. For example it may not be considered desirable to hold the massive recruitment exercise if the number of vacancies is too small. There may be cases where there is delay on part of the High Court in computing and intimating vacancies to the Governor.
The upper age limit was enhanced from 30 to 32 years under the 1951 Rules, and now under the 2001 Rules it has been enhanced to 35 years. In respect of reserved category candidates, the said age limit is higher by 5 years, which means 40 years. The selection and appointment to the judicial service also takes anything between 1 to 3 years. To take the example of 1997 examination, which was held after a gap of 7 years, if the interpretation suggested by the petitioners is to be accepted, a candidate of reserved category would get a further relaxation of six years ie. 40 plus 6 years. Adding the recruitment time of 2 to 3 years to this would mean that by the time he gets appointed, a reserved category candidate would be reaching the age of 48 or 49 years and a non-reserved category candidate would be reaching the age of 43 or 44 years. Normally it takes about 18 years in this State for a member of the judicial service to get promoted to the Higher Judicial Service. The retirement age of a judicial officer is 60 years now. Thus, chances would be that none of these judicial officers who get recruited at such a belated age would even be able to become Additional District Judge. Future service prospects are an important element in ensuring devotion to duty. With obvious lack of promotional prospects, it would be difficult to expect devotion to duty on part of the judicial officer. We, therefore, think that public policy requires that the contention from the petitioners' side that no change has been brought about in the upper age limit by the second proviso to Rule 10 of the 2001 Rules as compared to the second proviso to Rule 11 of the 1951 Rules should not be accepted.
Having regard to what has been observed above, we are of the opinion that no discrimination can be said to arise if candidates are divided into two categories extending the benefit of continued eligibility only to some of them who were eligible when the vacancies were requested to be filled up under Rule 15 but have subsequently become overage and not allowing that benefit to others in the best interests of maintaining the standards in the judicial service. While according the benefit of an enhanced age limit, it is open to the Rule making authority under Article 309 of the Constitution of India to balance the hardship of the candidates with the interests of the judicial service and then to decide whether the benefit should be confined to a few candidates without compromising on the prospects of devotion to duty on part of the selected candidates.
Further as suggested from the respondents' side, where the Appointing Authority does not deem it expedient to initiate recruitment process, the candidates who were eligible but who have lost eligibility subsequently can not allege deprivation of any vested right to compete for a particular service. In fact, if the second proviso to Rule 10 of the 2001 Rules had not been there at all, we fail to see any ground which could have been pressed forward by any of the petitioners or such candidates compelling the respondents to grant any such relaxation. Therefore, the grant of such relaxation to some candidates while denial of this benefit of age relaxation to other candidates can not be said to be infringing any right of the candidates who have been denied that benefit. Again a candidate becomes eligible for competing at the age of 22 years. Normally, a candidate who is unable to pass LL.B., which is the eligibility qualification till the age of 25 years could hardly be expected to succeed in the competition. Assuming that a candidate passes his LL. B., at the age of 25 years, he gets 10 years up to the age of 35 years for utilising his four chances. Thus, by increasing the upper age limit to 35 years, the 2001 Rules have given sufficient margin to candidates to utilise all of their four chances.
Conclusion and directions :
We therefore dispose of these writ petitions directing the Commission to revise its recommendations, if necessary, and forward the same within four weeks from today, according to the following criteria.
On the basis of the ''requisition' dated 23-11-2002, the ''recruitment year' for the 2003 recruitment will be from 1st July 2002 to 30th June 2003. For determining whether a candidate was eligible in that recruitment year, it should be assumed that an advertisement pursuant to the ''requisition' dated 23.11.2002 was issued before 31.12.2002 and, therefore, all candidates who were less than the upper age limit, according to his category (reserved or unreserved), on 1.7.2003 would be eligible to appear at the 2003 recruitment. However, candidates who had crossed the upper age limit according to their respective categories up to 30.6.2003 will not be eligible under the second proviso to Rule 10.
The other respondents will also abide by the above and act expeditiously, in keeping with the desire of the Supreme Court in the All India Judges Association case. Writ petitions disposed off finally as above. No costs.
Dated: October 21, 2005
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