2006 Supreme(SC) 308

2006(3) Supreme 493
SUPREME COURT OF INDIA
(From Allahabad High Court)
Y.K. Sabharwal, CJI., C.K. Thakker, J.
Malik Mazhar Sultan & Anr.—Appellants
versus
U.P. Public Service Commission & Ors.—Respondents
Civil Appeal No. 1867 of 2006
(Arising out of SLP (C) No. 22523 of 2005)
With
Civil Appeal Nos. 1868, 1869, 1870, 1871 and 1872 of 2006
(Arising out of SLP (C) Nos. 23314, 23316, 23702, 25179 and 24732 of 2005)
All Decided on 3-4-2006
Counsel for the Parties :
For the Appearing Parties : Gopal Subramanium, ASG, Mukul Rohtagi, M.L. Verma, Dr. R.G. Padia, Sr. Advocates, Ejaz Maqbool, Vikash Singh, Ms. Taruna Singh, Abhijit Sinha, C.D. Singh, Dr. Indra Pratap Singh, Ms. Kiran Suvarna, Vivek Narayan, G.V. Rao, Shail Kumar Dwivedi, Sanjay Parikh, A.N. Singh, Chandra Prakash, Lakshmi Raman Singh, A.K. Tripathi, Ms. Sangeeta Das, Dharmendra Kumar Sinha, Satya Mitra, Arvind Kumar Tiwary, Rajiv Ranjan Dwivedi, Awadhesh Kumar Chaudhary, Ms. Prerna, Ranjan Dwivedi, S. Chander Shekhar, S.W.A. Qadri, Rajeev Kumar Dubey, Kamlendra Mishra, K.K. Mohan, Soren Uppal, Prakash Kumar Singh, Ashok K. Srivastava, Saurabh Trivedi and Prashant Chaudhary, Advocates.

VERY IMPORTANT POINT
All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for determination of vacancies of Judges, issue of advertisement, conducting examinations etc., so that every year vacancies that may occur are timely filled.

Headnote:SERVICE LAW—U.P. Judicial Service Rules 2001—Rules 4(m), 6, 7, 10, 15 to 19—Recruitment to posts of Civil Judge (Junior Division)— Eligibility of age—Determining factor—By requisition dated 23.11.2002, U.P. Public Service Commission was informed that it has been decided to make appointment of 347 candidates in three phases—By another requisition dated 29.7.2003 the Government informed PSC that recruitment be conducted in two phases—By third requisition dated 10.11.2003, PSC was informed that on basis of recommendations of the High Court, it had been decided to hold selection together for 374 posts on basis of competitive examination—An advertisement dated 22-28th November, 2003 was issued by PSC for holding examinations—In respect of age limit, advertisement stated that candidates must have attained the age of 22 years and must not have attained age of more than 35 years on 1.7.2004—It was further stated that those candidates who were within age on 1.7.2001 and 1.7.2002 shall be treated within age for this examination—Preliminary and main examinations were held and successful candidates were called for interview—On issue of age requirement, PSC came to the conclusion that provision of relaxation in age limit given in the advertisement seems to have been done due to misinterpretation of Rules—Due to non-availability of relaxation in age limit, candidature of the candidates who were overage on 1.7.2004 was rejected—Writ petitions filed by candidates who were excluded in terms of the said decision—Whether High Court was justified in holding recruitment year to be from 1.7.2002 to 30.6.2003—(Yes)—Those candidates who were eligible on 1.7.2002 and also those who were eligible on 1.7.2004 would be eligible to be considered for appointments.

       Held : The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1st July, 2001 and 1st July, 2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but 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 otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. It the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules. The Rules postulate the timely determination of vacancies and timely appointments. The non-filling of vacancies for long not only results in the avoidable litigation but also results in creeping of frustration in the candidates. Further, non-filling of vacancies for long time, deprives the people of the services of the Judicial Officers. This is one of the reasons of huge pendency of cases in the courts.(Paras 21 & 22)

       It is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting examinations, interviews, declaration of the final results and issue of orders of appointments. For all these and other steps, if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies. The dates for taking these steps can be provided for on the pattern similar to filling of vacancies in some other services on filling of seats for admission in medical colleges. The schedule appended to the Regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year. The exception can be provided for where sufficient number of vacancies do not occur in a given year. The adherence to strict time schedule can ensure timely filling of vacancies. All State Governments, Union Territories and/or High Courts are directed to provide for time schedule for the aforesaid purposes so that every year vacancies that may occur are timely filled. All State Governments, Union Territories and High Courts are directed to file within three months details of the time schedule so fixed and date from which time schedule so fixed would be operational.(Para 23)

       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).(Para 25)

       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.(Para 26)

       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).(Paras 27 & 28)