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Ashok Kumar Mishra v. State Of U.P. And Another - WRIT - A No. 36676 of 2004  RD-AH 744 (9 September 2004)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 36676 OF 2004
Ashok Kumar Mishra -------- Petitioner
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.
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