A Division Bench of this Court (in which I was also a member) in Dr. Rajeev Ranjan Mishra and others v. State of U.P. and others,MANU/UP/1506/2007 : 2008(1) AWC 810, referring to some of above authorities, has said:
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 M.P. v. Shardul Singh, MANU/SC/0510/1969 : 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, MANU/SC/0682/1992 : 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.
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.
Citation: 2013(11)ADJ534, (2014)1UPLBEC224
IN THE HIGH COURT OF ALLAHABAD
Decided On: 12.09.2013
Appellants: Raj Kumar Pandey and Others
Vs.
Respondent: State of U.P. and Others
Vs.
Respondent: State of U.P. and Others
1. Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for petitioner in leading case, i.e. Writ Petition No. 1689 of 2011 (hereinafter referred to as "first petition"), learned Standing Counsel for State-respondents; and Sri A.K. Sinha, learned counsel appearing for Commission. Learned counsels appearing for petitioners in rest of the writ petitions have adopted the arguments advanced by Sri Ashok Khare, learned Senior Advocate in leading case. The petitioners are seeking upper age limit so as to be considered for recruitment to the post of Additional Private Secretary in U.P. Secretariat pursuant to advertisement No. A-5/E-1010 dated 25.12.2010 and have sought consequential mandamus to the respondents to consider them as eligible and within permissible age limit.
2. The U.P. Public Service Commission (hereinafter referred to as "UPPSC") advertised 120 vacancies under general recruitment, and, 10 under special recruitment, of the posts of "Additional Private Secretaries" in U.P. Secretariat at Allahabad and Lucknow vide advertisement A-5/E-1/2010 dated 25.12.2010, published in Employment News dated 25-31 December' 2010. The last date for submission of application form was 21.1.2011. Para 6 thereof provided age limit and reads as under:
Age Limit: The candidates must have obtained the age of 21 years and must not have crossed age of 35 years as on 1.7.2010 i.e. they should have born after 1st July 1989 and not before 2nd July 1975.
3. The upper age limit was relaxable in the light of provisions applicable to Scheduled Castes, Scheduled Tribes and Other Backward Classes; and, other categories of the candidates like dependants of freedom fighters, ex-serviceman etc.
4. Petitioners, being general category candidates, the provisions relating to relaxation referred to in para 7 of the advertisement, admittedly, are not applicable. However, this is also admitted that all the petitioners had already crossed 35 years of age on 1.7.2010. In other words, the petitioners having born before 2.7.1975 were over age, hence, not eligible to participate in the above selection process. It is this disability pertaining to age, which has caused a grievance to the petitioner giving rise to the present writ petitions.
5. It is contended that prior to the advertisement in question, the only recruitment made was in 2001 vide advertisement number A-3/E-1/2001, for which last date of submission of application form was 25.8.2001. For the purpose of age, 1.7.2001 was the cut of date therein.
6. It is contended that since in the preceding ten years, vacancies were available but no appointments were made, this has led the petitioners becoming over age for no fault on their part, and hence they should be given benefit in this regard. If due to non holding of any recruitment in the preceding years, petitioners have rendered overage, this should be given due credit by treating them within permissible age limit.
7. Sri Ashok Khare, learned counsel for petitioners, contended that in the Advertisement of 2001, there was a note that the selection/recruitment having not been made in 2000, those who were eligible on 15.7.2000, otherwise, and have become overage on 1.7.2001, shall be treated to be eligible for the recruitment of 2001. The aforesaid note was as under:
English Translation by the Court:
Note: The candidates, who were within age limit on the 1st day of July 2000 and eligible otherwise, i.e., aged between 21 to 35 years on 01st July 2000, but due to non holding of examination in that particular year, have become overage, would be held eligible to appear in the examination for the said post.
8. It is said that similar note has not been mentioned/appended in the impugned advertisement and this has resulted in discrimination to the petitioners. The advertisement, thus published by respondents, without the aforesaid note, is illegal and arbitrary. It is also pointed out that a similar Note was appended in respect to the recruitment made for the post of Personal Assistants, Board of Revenue U.P. as is evident from Advertisement No. 8-6/E-1/2008 dated 7.3.2009. Sri Khare submitted that there is no logic, not to give a similar age benefit to the impugned selection when for nine years no recruitment has been held by respondents, for the reasons attributable to them. It is contended that there is a power of relaxation and hence respondents must consider relaxation to petitioners in the matter of age and should not made them to suffer for no fault on their part.
9. Writ petitions have been contested by UPPSC, filing its counter-affidavit, stating that the advertisement for the post of Additional Private Secretary in U.P. Secretariat has been made in accordance with relevant Service Rules, applicable to aforesaid service wherein no such relaxation, in the manner as claimed by petitioners, is permissible, i.e., simply for the reason that no examination was held in the past some time and, therefore, there is no illegality in the advertisement.
10. In rejoinder-affidavit filed by petitioners, it is said that reliance on the Service Rules applicable to "Personal Assistants" is misconceived, inasmuch selection in question is for the post of "Additional Private Secretary" and it not governed by Rules applicable to "Private Secretaries". Sri Ashok Khare, elaborating his submissions contended, that, recruitment, for the post of Personal Assistants and Additional Private Secretaries earlier used to be governed by U.P. State Secretariat Ministerial Staff Rules, 1942 (hereinafter referred to as "Rules, 1942"). It was then known as "Stenographer". Rule 8 thereof specify permissible age limit. It contains a proviso that candidates who were eligible in the years in which no examination has been held, would be treated to be eligible in the next ensuing examination.
11. A new set of rules, namely, U.P. Secretariat Personal Assistant Service Rules, 2001 (hereinafter referred to as "Rules, 2001). It is contended that it would have no application to the post of "Additional Private Secretaries", hence Rules 1942 would continue to govern the post in question. It is also contended that the stand of UPPSC that rules do not provide any relaxation in the matter of age is not correct.
12. I have heard learned counsel for parties and perused the record.
13. It cannot be doubted that earlier there was single set of rules governing the entire ministerial Staff of the Secretariat, i.e., Rules 1942, a copy whereof is on record as Annexure 6 to the first petition. Strength of service included under Rules, 1942 is evident from Rule 3 which reads as under:
(A) Superior:(1) Upper Division Assistant (including Assistant Superintendent)(2) Translator (including Assistant Superintended)(3) Journalist(B) Subordinate:(1) Treasurer(2) Budget Assistant(3) Reference Clerks (including Accountant)(4) Lower Division Assistants(5) Hindi and Urdu Typists(C) Stenographer(D) Miscellaneous Petty posts specified below which are outside the purview of the Commission:(1) Care Taker, Council House(2) Telephone Operator(3) Typewriter Mechanic(4) Junior Grade Clerks(emphasis added)
14. It is also provided in Rule 3(ii), clarifying, that the staff as a whole does not constitute one service. The classes of post enumerated under heading "A (Superior)", in the Note above, were/are not interchangeable. Nomenclature of Personal Assistants or Additional Private Secretary, I do not find to have been provided in Rules, 1942 (a copy whereof has been placed as Annexure 6 to the first petition), but it is pointed out at the bar that the cadre of Stenographer was subsequently designated as Personal Assistant/Additional Private Secretary and the recruitment thereof was made and continued to be governed by Rules, 1942.
15. This is, however, not in dispute that for governing the Personal Assistants, a different set of Rules were promulgated vide Notification dated 29.8.2001 i.e. Rules, 2001. The entire cadre of Personal Assistants consisted of 447 permanent and 165 temporary posts i.e. total 612.
16. Rule 10 thereof talks of permissible age and reads as under:
10. Age.--A candidate for direct recruitment must have attained the age of 18 years and must not have attained the age of more than 35 years on the first day of July of the calendar year in which vacancies for direct recruitment are advertised:Provided that the upper age-limit in the case of candidates belonging to the Scheduled Castes, Schedules 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.
17. Once it is admitted that the recruitment of Private Secretaries and Additional Privates Secretaries earlier and before promulgation of Rules, 2001 was governed by Rules, 1942, I have no manner of doubt that both these designations even if treated to be differently must have come in lieu of the post of Stenographers mentioned therein. There is no basis to propound a submission that "Additional Private Secretary" is a post not governed by the Rules, 2001 simply for the reason that the service has been defined in Rule 3(j) Rules, 2001 by referring to only Personal Assistants. Rule 4 talks of cadre of service providing the strength and it is true that in sub-rule (2) it mentions the designation of "Personal Assistants" only. It talks of permanent and temporary posts but then one has to go through proviso thereof, Clause 2 whereof empowers the Governor to create such additional permanent or temporary posts as he may consider proper. An Additional post of Personal Assistant created under Rule 4 Proviso (2) therefore would be within the precinct of Rules, 2001 and cannot be a different one.
18. However, I need not to waste my time in finding out whether Rules, 2001 cover the post of "Additional Private Secretary" or not in the manner as argued by the learned Senior Counsel, Sri Khare, for the reason that there is an amendment of Rules, 2001, i.e. Uttar Pradesh Secretariat Personal Assistant Service (First Amendment) Rules, 2005. Rule 2 of the aforesaid amending rule substituted the words "Personal Assistant" by the words "Additional Private Secretary" wherever they occur and then there are some other amendments in Rule 8, 10 and 15 also. Rule 10, which enhance the minimum age of recruitment from 18 to 21, as amended by substitution by amendment of 2005, thus, read as under:
10. Age.--A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of more than 35 years on the first day of July of the calendar year in which vacancies for direct recruitment are advertised:Provided that the upper age limit in the case of candidates belonging to the Scheduled Castes, 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.
19. The aforesaid amendment makes everything clear that Rules, 2001 have been amended and the cause title as well as all the concerned Rules wherever the words "Personal Assistant" occurs have been substituted by the wards "Additional Private Secretary". The changed title, therefore, now would be U.P. Secretariat Additional Private Secretary Service Rules, 2001. The argument that the aforesaid Rules would not cover the post of "Additional Private Secretary" thus has no ground at all and it deserves to be rejected outright.
20. Now 1 come to the substantial question whether non providing relaxation in the matter of age, in respect to the period when no recruitment was held, is illegal, arbitrary or otherwise bad in law. This issue can be examined from two angles. Firstly, such a relaxation cannot be claimed unless rule mandates holding of selection at a regular interval and provide consequences of non holding of selection at such regular interval. Secondly, the right of the candidates.
21. Now both these aspects have to be looked into in the light of relevant provisions of Rules, 2001. Part V contains various rules relating to procedure of recruitment. Rule 14 talks of determination of vacancies in a year of recruitment. Rule 10 co-relates the cut of date for the purpose of age with reference to calendar year in which vacancies for direct recruitment are advertised. Rule 4, proviso, empowers appointing authority to leave any vacancy unfilled. Besides, the Governor may also hold, in abeyance, any vacant post, without thereby entitling any person to compensation.
22. In my view, Rule 14 or any other rule of Rules, 2001 nowhere contemplates an annual selection and making it obligatory on the part of respondents. On the other hand what it provides is that appointing authority shall determine number of vacancies to be filled during the course of 'year' as also number of vacancies reserved for various categories, under Rule 6, which shall be filled in through Commission, on intimation being sent. Thus, it only provides that for the purpose of determination of vacancy, appointing authority shall take into notice 'year' as the unit for which selection process is being undertaken, meaning thereby the vacancies shall not include anticipated vacancies after the 'year' when recruitment process would commence. The existing vacancies as well as the vacancies likely to arise in the course of 'year' would only be considered and determined by the appointing authority. The 'year' of recruitment' has also been defined under Rule 3(1) of Rules, 2001 as under:
3(1) "Years of Recruitment" means a period of twelve months commencing from the first day of July of a calendar year.
23. 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 Rules, 2001 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.
24. In order to accept the contention of petitioner this Court 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 Rule framing 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 statute but would simply interpret and implement the provision as it is. Rule 10 nowhere leaves any doubt that as and when recruitment shall be made, the incumbent must fulfil the age limit of 21 years to 35 years on the first day of 'calendar year', in which vacancies are advertised by the Commission. It excludes any other contingency for the purpose of age limit. The only incident to apply cut-off date for age is the 'calendar year' in which vacancies are advertised by Commission.
25. The principle laid down under Rule 10 of Rules, 2001 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 prospective candidate cannot compel employer to consider him for employment even though the post has not been made open for recruitment and selection.
26. Considering a similar argument, this Court in Sanjay Agarwal v. State of U.P. and others, MANU/UP/0439/2007 : 2007(6) ADJ 272 (DB), in para 41 of the judgment, has held:
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...
27. A Full Bench in Shikha Srivastava and others v. State of U.P. and others, MANU/UP/0511/2007 : 2007(5) ADJ 449 (FB): MANU/UP/0511/2007 : 2007(3) ESC 1806 (A11)(FB), also has considered a similar argument and taking similar view, has observed:
Nobody can claim as a matter of right that recruitment of any post should be made every year.
28. Even otherwise Rule 10 of Rules, 2001 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.
29. The Apex Court in Food Corporation of India v. Bhanu Lodh, MANU/SC/0142/2005 : (2005)3 SCC 618, 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., JT MANU/SC/1729/2006 : 2006(4) SC 531, the Apex Court has said that the recruitment to the service could only be made in accordance to the rules and not otherwise. The first aspect therefore has to be returned against petitioners.
30. Now coming to the submission that respondents ought to have relaxed rigour of Rule 10 when selection was not made for almost 9 years and power of relaxation exist in Rule 25 of Rules, 2001 I find that this submission, also misconceived and in fact a misreading of Rule 25.
31. Rule 25 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 25 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". Rules, 2001 contains two types of rules, one, those pertaining to "recruitment" and those regulating to "conditions of service".
32. Part IV and V 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 25 since such rules are not relaxable. The distinction between "recruitment" and "conditions of service" and rules relating to either of them is no more res integra having been considered time and again.
33. In State of Madhya Pradesh v. Shardul Singh, MANU/SC/0510/1969 : 1970(1) SCC 108, the Court explained the expression "conditions of service" as under:
The expression "conditions of service" is an expression of wide import. It means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc.
34. In I.N. Subba Reddi v. Andhra University, MANU/SC/0440/1976 : 1977(1) SCC 554, the Court explained the term as under:
The expression '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 his retirement and even beyond it, in matters like pension etc.
35. Same view was taken in para 6 of the judgment in Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg and another,MANU/SC/0443/1976 : 1977(2) SCC 457.
36. In Lily Kurian v. Sr. Lewina and others, MANU/SC/0041/1978 : 1979(2) SCC 124, in para 13 of the judgment, the Court referred to above decisions and observed that the expression "conditions of service" includes everything from the stage of appointment to the stage of termination of service and even beyond including the matter pertaining to disciplinary action.
37. In Syed Khalid Rizvi v. Union of India, MANU/SC/0682/1992 : (1993) 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.
38. A Division Bench of this Court (in which I was also a member) in Dr. Rajeev Ranjan Mishra and others v. State of U.P. and others,MANU/UP/1506/2007 : 2008(1) AWC 810, referring to some of above authorities, has said:
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 M.P. v. Shardul Singh, MANU/SC/0510/1969 : 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, MANU/SC/0682/1992 : 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.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.
39. The above decision has been followed in Devendra Nayak and another v. State of U.P. and others, MANU/UP/4181/2011 : 2011(8) ADJ 63 (NOC).
40. There is a Full Bench judgment of Gujarat High Court also dealing with this issue in A.J. Patel and others v. The State of Gujarat and others,MANU/GJ/0093/1965 : AIR 1965 Guj 23. The judgment was rendered by Hon'ble K.T. Desai, C.J. and in para 27, with reference to the terms "recruitment" and "conditions of service" mentioned in Article 309 of the Constitution, His Lordship said:
From this Article it is evident that rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and condition relating to recruitment and relating to appointment to public services and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts.
41. In these writ petitions, vacancies have only been advertised. 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 their conditions of service. It is a rule pertaining to recruitment and cannot be relaxed in exercise of power under Rule 25 of Rules, 2001.
42. I also find that considering a similar argument founded on pari materia provision, in U.P. Homoeopathic Medical Service Rules, 1990, a Division Bench of this Court (in which I was also a Member) in Dr. Rajeev Ranjan Misra (supra) has taken the same view, as I have expressed above and I am fortified therewith also.
43. Similar view was taken by another Division Bench's judgment in Sanjay Agarwal v. State of U.P. and others (supra) (para 40, 41, 42 and 43 of the judgment).
44. In view of above, the relaxation, as claimed, neither can be granted nor there is anything which can be termed as arbitrary or illegal, if such relaxation is not extended to the petitioners. In view of above, all the writ petitions are devoid of merits and are dismissed accordingly. No costs.
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