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Friday, December 6, 2013

Minimum age limit for appointment of District & Sessions Judge in A.P. = no minimum age limit = it was not necessary for the appellant to have completed the age of 35 years for being appointed to the post in question as there is no provision in the Andhra Pradesh State Judicial Service Rules, 2007 = Sasidhar Reddy Sura .....Appellant Versus The State of Andhra Pradesh & Ors. …..Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41044

  Minimum age limit for appointment of District & Sessions Judge in A.P. = no minimum age limit =  it was not necessary for the appellant to have completed the age of
        35 years for being appointed to the post in question as there is no
        provision in the Andhra Pradesh State Judicial Service Rules,  2007 =

 The appellant, a  candidate  who  aspired  to  be  a  District  and
        Sessions Judge, has filed this Appeal challenging the  validity  of
        the Judgment and Order dated 17th July, 2012 delivered by the  High
        Court of Andhra Pradesh in Writ Petition No. 34683 of 2011.
 he had  not  been  appointed  to  the  post  of
        District and Sessions Judge.  In  pursuance  of  an  advertisement,
        dated 19th August, 2010 published  by  the  High  Court  of  Andhra
        Pradesh inviting applications  for  appointment  to  18  (eighteen)
        posts of District and Sessions Judges (Entry  Level)  in  the  A.P.
        State Judicial Service, the appellant  had  applied  for  the  said
        post.
  he had found his name in  the  select  list.
  for the reason that  he  had  not
        completed 35 years of age at the time when  he  had  submitted  his
        application or at the time when the advertisement had  been  issued
        and also for the reason that  he  had  not  completed  seven  years
        standing at the bar as an advocate.        =     
While deciding the Writ Petition,  the  High  Court
        had come to a conclusion that though the  appellant  had  completed
        seven years as an advocate, he had not attained the age of 35 years
        at the time when the advertisement had been  issued  i.e.  on  19th
        August, 2010 and therefore, the appellant was not  eligible  to  be
        appointed to the post in question. =       
By virtue of an order passed in C.A.No.10836 of 2013  arising  out  of
      SLP(C) No.23171 of 2012, this Court has already held that there is  no
      minimum age qualification for being appointed to the post in  question
      and therefore, in our opinion,  the  appellant  could  not  have  been
      denied appointment to the post in question on the ground that she  had
      not completed 35 years of age at the time when the  advertisement  had
      been published.


   6. For the reasons recorded in C.A.No.10836 of 2013 arising out of SLP(C)
      No.23171 of 2012, the present appeal is allowed  and  it  is  directed
      that the High Court as  well  as  the  respondent-State  will  do  the
      needful for giving appointment to  the  appellant  with  retrospective
      effect i.e. from the date on which she ought to have  been  appointed,
      however, she shall not be paid salary for the period during which  she
      has not worked as a District & Sessions Judge.  We are sure  that  the
      respondents would do the needful for the appointment of the  appellant
      at an early date.


   7. The appeal is allowed with no order as to costs.




      REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 10836  OF 2013
                 (Arising out of SLP (C) No. 23171 of 2012)




Sasidhar Reddy Sura                          .....Appellant



                                Versus



The State of Andhra Pradesh & Ors.              …..Respondents

                            WITH

                      CIVIL APPEAL NO.  10837  OF 2013
                 (Arising out of SLP (C) No. 24313 of 2012)


                               J U D G M E N T




1 ANIL R. DAVE, J.




     1. Leave granted.


     2. The appellant, a  candidate  who  aspired  to  be  a  District  and
        Sessions Judge, has filed this Appeal challenging the  validity  of
        the Judgment and Order dated 17th July, 2012 delivered by the  High
        Court of Andhra Pradesh in Writ Petition No. 34683 of 2011.


     3. The grievance which had been ventilated by the appellant before the
        High Court was that he had  not  been  appointed  to  the  post  of
        District and Sessions Judge.  In  pursuance  of  an  advertisement,
        dated 19th August, 2010 published  by  the  High  Court  of  Andhra
        Pradesh inviting applications  for  appointment  to  18  (eighteen)
        posts of District and Sessions Judges (Entry  Level)  in  the  A.P.
        State Judicial Service, the appellant  had  applied  for  the  said
        post.  He had taken the written examination and  also  appeared  in
        the oral interview and he had found his name in  the  select  list.
        Though the appellant found his name in the select list,  he was not
        appointed to the post in question for the reason that  he  had  not
        completed 35 years of age at the time when  he  had  submitted  his
        application or at the time when the advertisement had  been  issued
        and also for the reason that  he  had  not  completed  seven  years
        standing at the bar as an advocate.


     4. As the appellant had not been appointed to the post in question, he
        had filed the aforestated Writ Petition before the  High  Court  of
        Andhra Pradesh. While deciding the Writ Petition,  the  High  Court
        had come to a conclusion that though the  appellant  had  completed
        seven years as an advocate, he had not attained the age of 35 years
        at the time when the advertisement had been  issued  i.e.  on  19th
        August, 2010 and therefore, the appellant was not  eligible  to  be
        appointed to the post in question.  Thus, on one count the petition
        filed by the appellant had failed and  therefore,  by  filing  this
        appeal the appellant has approached this Court contending  that  it
        was not necessary for him to have completed 35  years  of  age  for
        being appointed to the post of  the  District  and  Sessions  Judge
        (Entry Level) in the A.P. Judicial Service.


     5. The learned counsel appearing for the appellant had submitted  that
        it was not necessary for the appellant to have completed the age of
        35 years for being appointed to the post in question as there is no
        provision in the Andhra Pradesh State Judicial Service Rules,  2007
        (hereinafter referred to as the ‘Rules’) to  the  effect  that  the
        candidate, to be appointed to  the  post  in  question,  must  have
        completed 35 years of age.  He had submitted that  the  High  Court
        committed an error by coming to the conclusion that simply  because
        the Justice Shetty Commission  (hereinafter  referred  to  as  ‘the
        Commission’) had recommended that a person  who  has  completed  35
        years of age should only be appointed as a  District  and  Sessions
        Judge, the High Court,  on  an  erroneous  ground  decided  not  to
        appoint the appellant to the post in question.   According  to  him
        the Commission had merely made certain suggestions with  regard  to
        appointment of deserving candidates in judiciary so as to see  that
        the judiciary becomes  stronger.   In  an  effort  to  enhance  the
        standard of judges and judiciary, the Commission headed by  Justice
        Shetty had been appointed and certain recommendations had been made
        by the said Commission.  The said recommendations, according to the
        learned  counsel  appearing  for   the   appellant,   were   merely
        recommendatory in nature and by no stretch of imagination, the said
        suggestions could have been accepted unless they were supported  by
        relevant recruitment rules.  Ultimately he had also submitted  that
        if the recruitment rules are at variance with  the  recommendations
        of the Commission, the recruitment rules are to be followed and not
        the recommendations made by the Commission.


     6. The learned counsel had relied upon  certain  judgments  so  as  to
        buttress  his  submissions.   He  had  relied  upon  the   judgment
        delivered in the case of Syed T.A. Naqshbandi & Ors.  v.  State  of
        Jammu & Kashmir and Ors. (2003)  9  SCC  592.   He  had  drawn  our
        attention to para 8 of the said judgment which reads as under:


                “…The conditions of service of members of any  service  for
               that matter is  governed  by  statutory  rules  and  orders,
               lawfully made in the absence of  rules  to  cover  the  area
               which has not been specifically covered by such  rules,  and
               so long they are not replaced or amended in the manner known
               to law, it would be futile for anyone  to  claim  for  those
               existing  rules/orders  being  ignored  yielding  place   to
               certain policy decisions  taken  even  to  alter,  amend  or
               modify them. Alive to  this  indisputable  position  of  law
               only, this Court observed at Para 38, that "  we  are  aware
               that it will become necessary for service and other rules to
               be amended so as to implement this judgment".  Consequently,
               the High Court could not be found fault with for considering
               the matters in question  in  the  light  of  the  Jammu  and
               Kashmir Higher Judicial Service Rules, 1983  and  the  Jammu
               and Kashmir District and Sessions  Judges  (Selection  Grade
               Post) Rules, 1968 as well as the criteria formulated by  the
               High Court….”






     7. The aforestated observations made by this Court clearly state  that
        till the existing recruitment rules are amended,  suggestions  made
        by the Commission should not be taken into  account.   The  learned
        counsel had submitted that  the  Rules  governing  provisions  with
        regard to recruitment of a District  and  Sessions  Judge  did  not
        incorporate any restriction with regard to minimum  age  for  being
        appointed as a District  and  Sessions  Judge  and  therefore,  the
        recommendation made by the Commission with regard  to  minimum  age
        could not have been a reason for  not  giving  appointment  to  the
        appellant.  He had drawn our  attention  to  the  contents  of  the
        advertisement which  pertain  to  qualifications  and  age  of  the
        candidate for appointment to the post of a  District  and  Sessions
        Judge.  The relevant portion of the advertisement  reads as under:


                 “ Qualifications and age :  The  applicant  for  the  above
                 said post should be (a) an advocate of not less than  seven
                 years standing at the Bar (b) must not  have  completed  45
                 years of age on the first day of August,  2010  (relaxation
                 by three years in the upper age limit in respect of persons
                 belonging to the Scheduled Castes, the Scheduled Tribes and
                 Backward Classes) and (c) of sound health and active habits
                 and free from any body defect  or  infirmity  which  render
                 him/her until for such appoint.”






     8. The aforestated portion of the Advertisement merely states  that  a
        candidate must not have completed 45 years of age on the 1st day of
        August, 2010 and the appellant had not completed 45 years of age as
        on 1st  August, 2010.  The Advertisement as well as  the  Rules  do
        not say anything with regard to minimum  age  of  a  candidate  and
        therefore, the concept of minimum age being brought in by the  High
        Court was erroneous and thus, the view expressed by the High  Court
        cannot be accepted.


     9. He had further submitted that the aforestated judgment delivered in
        the case of Syed T.A. Naqshbandi’s case (supra) had  been  followed
        by this court in the case of Rakhi Ray & Ors.   v.  High  Court  of
        Delhi & Ors. [(2010) 2 SCC 637].


    10. The learned counsel had also drawn our attention to the  provisions
        of  Article 233 of the Constitution  of  India,  which  deals  with
        appointment to the post of a District and Sessions Judge.  The said
        Article reads as under:

           “Article 233:Appointment of district judges

           (1) Appointments of persons to be, and the posting and promotion
           of, district judges in any State shall be made by  the  Governor
           of the State in consultation  with  the  High  Court  exercising
           jurisdiction in relation to such State

           (2) A person not already in the service of the Union or  of  the
           State shall only be eligible to be appointed a district judge if
           he has been for not less than  seven  years  an  advocate  or  a
           pleader and is recommended by the High Court for appointment.”





   11.       The  learned counsel had submitted that there is  no  provision
        with  regard  to  minimum  age  in  the  aforestated  Article   and
        therefore, the High Court was in error in  rejecting  the  petition
        filed by the appellant on the ground that  the  appellant  had  not
        attained the age of 35 years at the  time  of  publication  of  the
        advertisement.


  12. For  the aforestated reasons, the learned counsel had  submitted  that
      the view expressed by the High Court is erroneous and therefore,  this
      Appeal should be allowed and  directions  should  be  given  that  the
      appellant be appointed as a District and Sessions Judge forthwith with
      retrospective effect and should also be paid salary from the  date  on
      which he ought to have been appointed.


  13. On the other hand, the learned counsel appearing for  the  High  Court
      had fairly submitted that though there was  a  recommendation  by  the
      Commission with regard to fixing of minimum age for being appointed as
      a District and Sessions Judge,  the Rules governing appointment to the
      post in question did not make any provision  with  regard  to  minimum
      age.


  14. The learned counsel appearing for the other selected  candidates  also
      made similar submissions.


  15. We have heard the learned counsel at length and have also perused  the
      judgments  referred  to  by  the  learned  counsel  and  the  impugned
      judgment.


  16.  Upon  hearing  the  learned  counsel  and  looking  at  the  relevant
      provisions governing  appointment  to  the  post  of  a  District  and
      Sessions Judge (Entry Level) in the A.P. Judicial Service, we are  not
      persuaded  to agree with the view expressed by the High Court.


  17. The relevant provisions pertaining to eligibility for being  appointed
      to the post of District Judges have been incorporated in clause  V  of
      the Rules, which read as follows:


           “1.  District Judges : A person to be appointed to the  category
               of District Judges by direct recruitment shall be :


            a. An advocate of not less than seven years standing at the Bar


            b. A person, who has not completed forty five years or  age  on
               the month in which the  notification  inviting  applications
               for such appointment is  published  in  the  Andhra  Pradesh
               Gazette.


            c. A person of sound health and active habits and free from any
               bodily defect or infirmity, which tender him, unfit for such
               appointment.






               Provided that the upper age  limit  in  respect  or  persons
               belonging to the Scheduled Castes; the Scheduled Tribes  and
               Backward Classes is relaxable by three years.”






  18. Upon perusal of the above clause, it is  very  clear  that  for  being
      appointed to the post in question, an advocate should  have  at  least
      seven years of standing at the bar and he should not have completed 45
      years  of  age  in  the  month  in  which  the  Notification  inviting
      applications for such  an  appointment  is  published  in  the  Andhra
      Pradesh Gazette.  The said clause does not provide for any minimum age
      and therefore, it is very clear that the Rules provide  only  for  the
      maximum age limit but not for any minimum age.  Thus, the  concept  of
      ‘minimum age’ for being appointed to  the  post  in  question  is  not
      incorporated in the Rules.


  19. The said concept, with regard to the minimum  age,  has  been  brought
      only from the report of the Commission.  For the reasons  recorded  in
      the report of the Commission, the Commission was of the view that  the
      post of  a District and Sessions Judge, being an important post, which
      not  only  requires  integrity  and  intelligence  but  also  requires
      maturity, the Commission  was of the view that  a  person  not  having
      completed 35 years of age should not be appointed to  the  said  post.
      It is pertinent to note that  this  was  merely  a  recommendation  or
      suggestion made by the Commission.  The recommendation or  suggestion,
      if not supported by the Rules, cannot be implemented.  In the  instant
      case, the Rules are silent with regard to the minimum  age.   It  only
      speaks about the maximum age.  In the circumstances, one  cannot  read
      provisions incorporated in the  report  of  the  Commission  into  the
      Rules.  The Rules are statutory and framed  under  the  provisions  of
      Article 309 of the Constitution of  India.  In  our  opinion,  if  the
      recommendations made by the Commission and the statutory Rules are  at
      variance, the provisions incorporated in the Recruitment Rules have to
      be followed.  It is pertinent to note that when such  a  question  had
      been raised before this Court, in the case of  Syed T.A.  Naqshbandi’s
      case  (supra),  this  Court  had  also  observed  that  till  relevant
      recruitment rules are  suitably  amended  so  as  to  incorporate  the
      recommendations made by the Commission, provisions  of  the  statutory
      rules must be followed.


  20. In the instant case, the Rules do not say anything with regard to  the
      minimum age of a candidate to be selected  to  the  post  in  question
      whereas the Commission had expressed its view in its report that  only
      after completion of 35 years of age a person should be appointed as  a
      District and Sessions Judge but the said recommendation has  not  been
      incorporated in  the  Rules  framed  by  the  High  Court  for  giving
      appointment to the post in question.


  21. In the aforestated circumstances, the appellant, who had not completed
      35 years of age at the relevant time could not have  been  denied  the
      appointment to the post in question simply because of his being  under
      age as per the recommendations of the Commission especially when there
      is no provision in the Rules that a candidate must have  completed  35
      years of age for being  appointed  to  the  post  of  a  District  and
      Sessions Judge.


  22. In our opinion, the  High  Court  was  in  error  while  giving  undue
      weightage to the recommendations made by  the  Commission,  especially
      when the Rules do not provide for any minimum age for the  appointment
      to  the  post  in  question.   Moreover,  even  Article  233  of   the
      Constitution of India is also silent about the minimum age  for  being
      appointed as a district judge.


  23. For the aforestated reasons, we are in agreement with the  submissions
      made by the learned counsel appearing for the appellant and therefore,
      we quash the impugned judgment so far as it pertains  to  the  present
      appellant and we direct that the appellant shall be appointed  to  the
      post in question with effect from the date on which he ought  to  have
      been appointed, however, he shall not be paid salary  for  the  period
      during which he has not worked as a District and Sessions Judge.   The
      appellant shall also be placed at appropriate place in  the  seniority
      list of the District Judges after  considering  his  position  in  the
      merit list. We are sure that the respondent- High Court as well as the
      State shall do the needful for giving an appointment to the  appellant
      at an early date.


     24. The appeal stands disposed of as allowed with no order as to costs.




   C.A.No. 10837/2013
   (Arising out of SLP(C) No.24313/2012)





   1. Leave granted.


   2. As the appellant had been desirous of being appointed  as  a  District
      and Sessions Judge (Entry Level)  in the A.P. State Judicial Services,
      she had applied for the post in question.  She had been  selected  for
      the post in question and her name was included in the select  list  at
      no.16.


   3. The selection of the appellant had been challenged by some  candidates
      by filing W.P.No.894 of 2012 in the High Court of  Andhra  Pradesh  on
      the ground that the appellant had not secured minimum  required  marks
      in the interview and she had not attained 35 years of age at the  time
      of publication of the advertisement and therefore, she could not  have
      been selected.  The  aforestated  petition  was  allowed  but  it  was
      allowed only on the ground of age limit of the  appellant.  
The  High
      Court was of the view that as the requirement  of  minimum  marks  had
      been done away with by virtue of an amendment made to Rule 6(4) & (10)
      of the A.P. State Judicial Service Rules, 2007 vide G.O.  Ms.  No.132,
      dated 16.11.2011, it was not necessary for  the  appellant  to  secure
      minimum marks in the interview for being eligible for appointment.


   4. Thus, the appellant was not appointed only for the reason that she had
      not completed 35 years of age  at  the  time  when  the  advertisement
      inviting applications for the post in question had been published.


   5. By virtue of an order passed in C.A.No.10836 of 2013  arising  out  of
      SLP(C) No.23171 of 2012, this Court has already held that there is  no
      minimum age qualification for being appointed to the post in  question
      and therefore, in our opinion,  the  appellant  could  not  have  been
      denied appointment to the post in question on the ground that she  had
      not completed 35 years of age at the time when the  advertisement  had
      been published.


   6. For the reasons recorded in C.A.No.10836 of 2013 arising out of SLP(C)
      No.23171 of 2012, the present appeal is allowed  and  it  is  directed
      that the High Court as  well  as  the  respondent-State  will  do  the
      needful for giving appointment to  the  appellant  with  retrospective
      effect i.e. from the date on which she ought to have  been  appointed,
      however, she shall not be paid salary for the period during which  she
      has not worked as a District & Sessions Judge.  We are sure  that  the
      respondents would do the needful for the appointment of the  appellant
      at an early date.


   7. The appeal is allowed with no order as to costs.



                                    ………………................................J.
                                                              (ANIL R. DAVE)







                           ….……...........................................J.
                                                                      (DIPAK
                                                                      MISRA)

   New Delhi
   December 05, 2013


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