A Division Bench of the Hon’ble Allahabad High Court in Dr. Rajeev Ranjan Mishra and others v. State of U.P. and others, 2008 (1) AWC 810, held as under:
“The distinction between rule of “recruitment” and “condition of service” is no more res integra having already been settled by the Apex court in catena of cases. In State of M.P. v. Shardul Singh, (1970) 1 SCC 108, the Apex Court held that the term “conditions of service” means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy v. State of A.P., (1997) 1 SCC 554. In Syed Khalid Rizvi v. Union of India, 1993 Supp (3) SCC 575, the Apex Court held that where a rule permits relaxation of provisions pertaining to “conditions of service”, the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that “conditions of recruitment” and “conditions of service” are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed.”
Allahabad High Court
Dr. Rajeev Ranjan Misra S/O Sri ... vs The State Of U.P. Through Its ... on 30 October, 2007
Equivalent citations: 2008 (1) AWC 810
Bench: S R Alam, S Agarwal
S. Rafat Alam and Sudhir Agarwal, JJ.
1. Heard Sri Ramendra Ashtana, learned Counsel assisted by Sri Atul Srivastava for the petitioners and learned Standing Counsel appearing for respondents No. 1 and 2.
2. The petitioner, six in numbers, have filed this writ petition challenging the Advertisement No. 02/2007-08 (Annexure-15 to the writ petition) issued by U.P. Public Service Commission (hereinafter referred to as the "Commission") published in daily news paper 'Rojgar Samachar' dated 11-17.08.2007, and, has further sought a writ of mandamus commanding the respondents to hold selection afresh treating all the petitioners eligible therefor and/or by granting relaxation in age.
3. The facts in brief, giving rise to the present writ petition are, that, all the petitioners are qualified for appointment to the post of Homoeopathic Medical Officer possessing bachelors degree in Homoeopathic Medicine and Surgery and are duly registered with the Homoeopathic Medicine Board, U.P., Lucknow. Recruitment to the post of Homoeopathic Medical Officer is governed by the U.P. Homoeopathic Medical Service Rules, 1990 (hereinafter referred to as "1990 Rules"). An advertisement was published by the Commission on 21.12.1991 in daily news paper Dainik Jagran notifying 67 vacancies of Homoeopathic Medical Officers. The age limit as on 01.07.1991 was 21-35 years in respect to general category candidates relaxable by five years in respect to reserve category candidates. The said recruitment, however, could not proceed since Government withdrew requisition. Thereafter, another advertisement was published in the year 1998 wherein the petitioners appeared before the interview board. However, they were eventually not selected. Now the impugned advertisement has been published notifying 191 vacancies for the post of Homoeopathic Medical Officers out of which 48 are reserved for scheduled castes, 16 for scheduled tribes and 46 for other backward class (hereinafter referred to as the "OBC"). Besides, five vacancies are notified for female Homoeopathic Medical Officers, out of which, one is reserved for scheduled tribes. We are not concerned in the present writ petition to the vacancies of female Homoeopathic Medical Officers. The eligibility with respect to age as notified in the impugned advertisement is 21-35 years as on 01.07.2007 and relaxation as prescribed for various categories, as per rules, is also admissible. Since all the petitioners have already attained age of more than 35 years as on 01.07.2007 they are ineligible for applying pursuant to the impugned advertisement. The date of birth of the petitioners as is evident from page 88 and 94 of the paper book as well as para 5 of the writ petition, as is under: S. No. Name Date of Birth
1. Dr. Rajiv RanjanMishra (Petitioner No. 1) 03.01.1967
2. Dr. Arun Kumar Sharma (Petitioner No. 2) 01.04.1965
3. Dr. Shyam Vir Singh (Petitioner No. 3) 01.01.1966
4. Dr. Achchey Lal Navik (Petitioner No. 4) 02.07.1960
5. Dr. Akshay Kumar (Petitioner No. 5) 10.07.1967
6. Dr. Manwendra Sharma (Petitioner No. 6) 18.10.1965
4. The petitioners No. 1 to 5 have made representations (Annexures-16 & 17 to the writ petition) to the respondents requesting to grant relaxation in the matter of age but having failed to get any response, the present writ petition has been filed challenging the advertisement and the age limit prescribed thereunder.
5. Sri Asthana, learned Counsel appearing for the petitioners contended that the scheme of 1990 Rules shows that it was incumbent upon the respondents to hold selection for direct recruitment every year and once the respondents failed to hold selection every year, they cannot insist upon, with respect to eligibility of age provided under Rule 10 of 1990 Rules. The scheme of the rules warrants execution and implementation of the entire set of rules in their entirety and if one part of the rule has been violated or breached, the other part of the rule also cannot be adhered to. In support of his submission reliance is placed on the Apex Court decision in State of Maharashtra v. Jagannath Achyut Karandikar AIR 1989 SC 1133. Arguing that direct recruitment was to be made every year, learned Counsel for the petitioners relied upon Rule 10, 14, 26 and 27 of 1990 Rules.
6. Having given our serious thoughts to the matter, however, we do not find any force in the submission and in our view the matter is otherwise covered by a Full Bench judgment of this Court in Civil Misc. Writ Petition No. 65189 of 2006 (Sanjay Kumar Pathak v. State of U.P. and Ors.) decided on 25.05.2007 and a Division Bench of this Court (in which one of us (Hon'ble Sudhir Agarwal, J.) was a member) in Civil Misc. Writ Petition No. 20016 of 2007 (Sanjay Agarwal v. State of U.P. and Ors.) decided on 15.06.2007.
7. Rule 10 provides for age and Rule 26 confers power upon the State Government to relax the rules. It would be appropriate to reproduce Rule 10, 14, 26 and 27 of 1990 Rules which have been relied upon by learned Counsel for the petitioners in support of his contention:
10. Age- A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of 35 years on the first day of July of the calendar year in which vacancies are advertised by the Commission:
Provided that the upper age limit in the case of the candidate belonging to Scheduled Caste, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified.
Provided further that relaxation from upper age limit not exceeding two years may be granted by the appointing authority, to such students of Homoeopathic C II whose studies were affected from May 2, 1977 to May 3, 1979 on account of agitation, in accordance with the orders of Government contained in G.O. No. 2280 Sec.-15/Punch 85-1122-82, dated August 13, 1995.
14. Determination of Vacancies:- Theappointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Caste, Scheduled Tribes and other categories under rule 6. The vacancies to be filled through the commission shall be intimated to them.
26. Relaxation from conditions of Service: Where the State Government is satisfied that the operation of any rule regulating the condition of service of a person appointed to the service causes undue hardship in any particular case, it may notwithstanding any thing contained in the rules applicable to the case, by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for...with the case in a just and equitable manner:
Provided that where a rule has been framed in consultation with the Commission, that body shall be consulted before the requirements of the rule are dispensed with or relaxed.
27. Savings: Nothing in these rules shall affect reservations and other concessions required to be provided for the candidates belonging to the Scheduled Caste, Scheduled Tribes and other special categories of persons in accordance with the orders of the Government issued from time to time in this regard.
8. In our view, Rule 14 nowhere contemplates an annual selection obligatory on the part of the respondents. On the other hand what it provides that the appointing authority shall determine the number of vacancies to be filled during the course of the 'year' as also the number of vacancies reserved for various categories under Rule 6 which shall be filled in through Commission on intimation being sent. It only provides that for the purpose of determination of vacancy, the appointing authority shall take into notice 'year' as the unit in which the selection process is being undertaken, meaning thereby the vacancies shall not include anticipated vacancies after the 'year' when the recruitment process would commence. The existing vacancies as well as the vacancies likely to arise in the course of the 'year' would only be considered and determined by the appointing authority. The 'year of recruitment' has also been defined under Rule 3(j) of 1990 Rules as under: 3(j) "Years of Recruitment" means a period of twelve months commencing from the first day of July of a calendar year.
9. Besides, Rule 4 Sub-rule 2 proviso empower the Governor to leave any vacant post unfilled or in abeyance without entitling any person to compensation. The appointing authority under 1990 Rules is the Governor meaning thereby the power under Rule 4 of the proviso is conferred upon the appointing authority and this shows that he is not obliged to fill in the vacancies as and when and immediately on their occurrence.
10. In order to accept the contention of the petitioner we will have to read in Rule 14, the words 'every year' instead of 'course of year which is not permissible since this Court will not legislate but only interpret and implement the law as enacted by the competent authority. Where the language of statute is clear and unambiguous, the Court will not interpret the statute which may result in adding or subtracting any word or phrase in the provision of the statute but would simply interpret and implement the provision as it is. Rule 10 nowhere leaves any doubt that as and when the recruitment shall be made, the incumbent must fulfil the age limit of 21 years to 35 years on the first day of the 'calendar year in which vacancies are advertised by the Commission. It excludes any other contingency for the purpose of age limit and the only incident to apply cut-off date for age is the 'calendar year' in which the vacancies are advertised by the Commission. The principle laid down under Rule 10 of 1990 Rules is consistent with the legal principles well known in service jurisprudence that, for the purpose of direct recruitment no person in open market has a right of consideration unless and until the vacancy is offered to be filled in accordance with law by the competent authority. As soon as a post fell vacant, it would not give or confer any right upon an individual, who fulfil other qualifications, to claim right of consideration for employment against such post for the reason that the employer can always keep a post unfilled. A perspective candidate cannot compel the employer to consider him for employment even though the post has not been made open for recruitment and selection; Considering a similar argument, this Court in Sanjay Agarwal (Supra) in para 41 of the judgment has held as under:
41. Further a person if fulfils requisite educational and other qualifications does not possess a fundamental or legal right to be considered for appointment against any post or vacancy as soon as it is available irrespective of whether the employer has decided to fill in the vacancy or not. The right of consideration does not emanate or flow from existence of the vacancy but commences only when the employer decides to fill in the vacancy and the process of recruitment commences when the notification or advertisement of the vacancy is issued. So long as the vacancy is not made available for recruitment, no person can claim that he has a right of consideration since the vacancy exists and therefore, he must be considered. We have not been confronted with any statutory provision or authority in support of this contention that the petitioners have a right of consideration on mere existence of vacancy. On the contrary, we are of considered view that the right of consideration would come in picture only when the vacancy is put for recruitment, i.e., when the advertisement is published. That being so, the right of consideration commences when the recruitment process starts. The incumbent would obviously have right of consideration in accordance with the provisions as they are applicable when the advertisement is made and in accordance with conditions provided in the advertisement read with relevant rules....
11. The Full Bench in Sanjay Kumar Pathak (Supra) also has considered a similar argument and taking similar view has observed as under:
Nobody can claim as a matter of right that recruitment of any post should be made every year.
12. Even otherwise Rule 10 of 1990 Rules which provides for age is independent and not subject to other rules. If what has been contended by the petitioners is accepted, it would make Rule 10 otiose or this Court would have to read so many words therein. The Apex Court in Food Corporation of India v. Bhanu Lodh has held that rigour of statutory provisions cannot be relaxed by giving a total go-bye to the statutes. In Mulik Mazhar Sultan v. U.P.P.S.C. the Apex Court has said that the recruitment to the service could only be made in accordance to the rules and not otherwise.
13. Coming to the submission that the respondents ought to have relaxed the rigour of Rule 10 when selection was not made for almost 9 years and power of relaxation exist in Rule 26 of 1990 Rules, we find that this submission is also misconceived and in fact a misreading of Rule 26. Rule 26 confers power upon the State Government to relax any rule pertaining to "conditions of service" of a person appointed to the service, if it causes undue hardship in any particular case. Evidently, Rule 26 is applicable to a person who is already in service and during the course of his service suffers any hardship due to operation of any rule regulating his "conditions of service". Admittedly, the petitioners do not belong to the category of persons appointed in service. Secondly, the rule is applicable to with reference the rules regulating "conditions of service" and not to the "rules pertaining to recruitment". 1990 Rules contains two types of rules, one, those pertaining to "recruitment" and regulating to "conditions of service". From the very short title of 1990 Rules it is evident from the following: The Governor is pleased to make the following rules regulating recruitment and conditions of service of persons appointed to the Uttar Pradesh Homoeopathic Medical Service.
14. Part 3, 4 and 5 contain rules of recruitment which includes rules pertaining to reservation, eligibility and other qualifications with respect to nationality, educational qualifications, age, character, marital status, physical fitness etc. and procedure for recruitment. The rules pertaining to 'recruitment' cannot be relaxed by exercising power under Rule 26 since such rules are not relaxable. The distinction between rule of "recruitment" and "condition of service" is no more res integra having already been settled by the Apex Court in a catena of cases. In State of U.P. v. Shardul Singh the Apex Court held that the term "conditions of service" means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy v. State of A.P. 1997(1) SCC 554. In Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575 the Apex Court held where a rule permits relaxation of provisions pertaining to "conditions of service", the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that "conditions of recruitment" and "conditions of service" are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed.
15. In this writ petition, the vacancies have only been advertised and the petitioners are claiming relaxation of eligibility condition so as to make them eligible for consideration in the aforesaid recruitment. Admittedly, having not been appointed in service, it cannot be said that the rule pertaining to age is a rule relating to condition of service. It is a rule pertaining to recruitment and cannot be relaxed in exercise of power under Rule 26 of 1990 Rules.
16. Rule 27 of 1990 Rules has also been relied by learned Counsel for the petitioners in support of his submission but we find that reference to Rule 27 is thoroughly misconceived and the said rule has no application whatsoever in the context of present case.
17. The judgment relied by learned Counsel for the petitioners in Jagannath Achyut Karandikar (Supra) shows that, it was a case of promotion of the candidates. Promotion is a condition of service of the persons who are already in service. Moreover, para 6 of the judgment shows that the Government preserved power to dispense with, or relax rules regulating "conditions of service" and it was held that promotion being a "condition of service", rules pertaining to promotion could have been relaxed by the Government. In the facts and circumstances of that particular case, the rules pertaining to "conditions of promotion" were interpreted in the manner so as not to adversely affect the persons who suffered in the matter of promotion on account of fault of the Government, particularly, when the Government itself had removed the hardship by giving benefit to the persons who had suffered. It was the relaxation granted by the Government which was challenged by some affected persons who succeeded in the High Court but the Apex Court reversed the judgment of the High Court. In our considered view the said judgment has no application at all to the scheme of the rules as applicable in the present case and to the question involved herein.
18. No other point has been argued. In view of the aforesaid discussion, we do not find any merit in this writ petition. It is accordingly dismissed. No costs.
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