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
-----------------------
3
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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