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2003 DIGILAW 139 (HP)

RAJESH KUMAR BASANDHI v. HIGH COURT OF H. P.

2003-06-05

K.C.SOOD, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, C.J.—The petitioner has challenged the appointment of respondent No. 4, as an Additional District and Sessions Judge, in the Higher Judicial Service of H.R State on the ground that in the advertisement issued by respondent No. 1 on 29.6.1999, it had prescribed, amongst the eligibility criteria, 35 years as the minimum age and 45 years as the maximum age with reference to cut off date being 1.1.1999, which was de hors the H.R Higher Judicial Service Rules, 1973 wherein a different formula has been prescribed for fixing the cut off date with reference to the lower and the upper age limits. On the factual side the petitioners contention is that if respondent No. 1 had fixed the age limit, especially on the higher side in accordance with the aforesaid 1973 Rules, respondent No. 4 on that basis had crossed the upper age limit and, therefore, he was not eligible for appointment. No other point was urged during the course of hearing by the learned Counsel for the petitioner. 2. Notice (Advertisement) No. HHC/GAZ/14-48/74-V dated 29.6.1999 was issued by the High Court of Himachal Pradesh, respondent No. 1, by which applications were invited for an unreserved temporary post of Additional District and Sessions Judge and the last date fixed for receipt of applications was 16.8.1999. In so far as the eligibility criteria is concerned, it was, inter alia provided in para 3 of the aforesaid notice/advertisement that no person would be eligible for recruitment in the service unless he was not less than 35 years and not more than 45 years of age as on 1.1.1999 and also had been for not less than 7 years an Advocate or a pleader. For ready reference para 3 of the aforesaid notice is reproduced, which reads thus: "No person shall be eligible for recruitment unless he :— (i) is not less than 35 years and not more than 45 years of age on the first day of January, 1999. (ii) has been for not less than 7 years an Advocate or a pleader, (iii) is an income-tax assessee." 3. Rule 9 of H.P. Higher Judicial Service Rules, 1973 (1973 Rules for short) also relates to the eligibility criteria for direct recruitment under the aforesaid 1973 Rules. For ready reference we reproduce hereinbelow Rule 9, which reads thus ? (ii) has been for not less than 7 years an Advocate or a pleader, (iii) is an income-tax assessee." 3. Rule 9 of H.P. Higher Judicial Service Rules, 1973 (1973 Rules for short) also relates to the eligibility criteria for direct recruitment under the aforesaid 1973 Rules. For ready reference we reproduce hereinbelow Rule 9, which reads thus ? "Appointment of direct recruits:— (1) No person shall be eligible for direct recruitment unless he:— (i) is not less than 35 years and not more than 45 years of age on the first day of January next following the year in which his appointment is made; (ii) has been for not less than 7 years an Advocate or a pleader and is recommended by the High Court, after it has held an interview or an examination or both as may be prescribed by it, for such appointment. 2. No person, who is recommended by the High Court for appointment under sub-rule (1), shall be appointed unless he is found physically fit by a Medical Board set up by the Governor, and is also found suitable for appointment in all other respects." 4. If one finds, by a plain reading of the eligibility criteria qua the upper and the lower age limits as prescribed in the impugned notice/ advertisement and the same as stipulated in Rule 9 (supra), the contention of Mr. Mittal, learned Counsel appearing for the petitioner becomes abundantly clear. The contention is that the impugned notice/advertisement by prescribing the lower and upper age limits and also by fixing the cut off date as 1.1.1999, was patently de hors Rule 9 of 1973 Rules because, under Rule 9 (supra) the upper and lower age limits have been prescribed keeping in view the cut off date as being the 1st January, next following the year in which the appointment is made. Apparently, therefore, Mr. Mittals argument does seem to be very clearly and amply plain and it is that the impugned stipulation in the Notice/Advertisement regarding the cut off date is de hors the Rules. The first impression which one gets on a plain reading of the impugned notice/advertisement as well as Rule 9 (supra) and on consideration of Mr. Apparently, therefore, Mr. Mittals argument does seem to be very clearly and amply plain and it is that the impugned stipulation in the Notice/Advertisement regarding the cut off date is de hors the Rules. The first impression which one gets on a plain reading of the impugned notice/advertisement as well as Rule 9 (supra) and on consideration of Mr. Mittals argument is that the prescription of upper and lower age limits with reference to the cut off date being 1.1.1999 in the impugned notice/advertisement does appear to be de hors Rule 9 of 1973 Rules, but then our attention was drawn to a Division Bench judgment of this Court in the case of Sureshzoar Thakur v. High Court of Himachal Pradesh and another (CWP No. 448 of 1998, decided on 15.7.1998) reported in 1999(1) Sim. L.C. 151. Chief Justice D. Raju (as his Lordship then was) speaking for the Division Bench, while dealing with the identical situation wherein the High Court by inviting the notice/advertisement on 10.6.1998 had fixed the upper and the lower age limits with reference to the cut off date being 1.1.1998 and also noticing Rule 9 of 1973 Rules, held that the expression "appointment" as occurring in Rule 9 cannot be so construed so as to mean or refer to the final act of actual appointment or issuing or notifying an appointment order for a person to assume or join duty. 5. In a situation where there are so many different steps in the process of appointment, the minimum or maximum age with reference to the eligibility of a candidate for appointment cannot be allowed to depend upon any fluctuating or nebulous or uncertain date. The Division Bench was also of the opinion that the acceptance of the interpretation as was sought to be placed on Rule 9 would result in a large number of candidates being allowed to apply who may not be otherwise eligible either minimum age wise or maximum age wise, for ultimate appointment but merely because they would have had 7 years of practice, they would be allowed to enter into the fray of the selection process and might make the entire selection process unwieldy, cumbersome and a futile exercise. The following observations are apposite and we quote :— "We are also of the view that the word "appointment" in Rule 9(1) of the Higher Judicial Service Rules cannot be so construed as to mean or refer to the final act of actual appointment or issuing or notifying an appointment for a person to assume or join duty. Having regard to the context that the rule relates to recruitment process, the word "appointment" will and shall be construed to comprehend all and various steps or stages, such as issuance of an Advertisement or notification calling for applications, receipt and processing of applications, conducting of examinations and/ or interviews, selection and preparation of the panel of successful candidates to be recommended to the Government for appointment and issue of actual order of appointment by the Government. Therefore, as observed by their Lordships of the Apex Court, when such and so many are the different steps in the process of Appointment, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or nebulous or uncertain date, apart from such date, if agreed to operating to the detriment of those who will be qualified when they apply, but ceased to be so, by the time the appointment is made, for no fault of theirs. As noticed earlier, acceptance of the interpretation sought to be projected for the petitioner, would also result in large number of candidates who may not be eligible, minimum age wise for ultimate appointment but merely because they have had seven years of practice in courts entering into the fray of selection and made the entire selection process unwield, cumbersome and a futile exercise, at times too. Consequently, the stipulation contained in the impugned notification, inviting applications, specifying a positive and determinate date within the peripheral parameters of the general stipulation contained in the statutory rule, cannot be said to be either opposed to or in violation of the statutory rules, so as to be struck down by us in this proceeding. Consequently, the stipulation contained in the impugned notification, inviting applications, specifying a positive and determinate date within the peripheral parameters of the general stipulation contained in the statutory rule, cannot be said to be either opposed to or in violation of the statutory rules, so as to be struck down by us in this proceeding. The fixation of such a specific date in the notification inviting application is with a definite, positive and constructive purpose to avoid misgivings and confusion among probable candidates who desire to apply and cannot be said to either totally off the mark, or arbitrary or unreasonable to attract the vice of Article 14 or Article 16 of the Constitution of India. The fact that in Article 233 it is stipulated that a person not already in the service of the Union or 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" does not confer any right upon every one, who completes seven years to be automatically eligible to either apply or compete for appointment inasmuch as the said stipulation is of a minimum requirement only and not the only thing, or an optimum requirement." 6. Elsewhere, in the same judgment, their Lordships of the Division Bench had the following observations to make :— "......It is to avoid such uncertainties, the notification under challenge specified the cut-off date with precision and clarity. If the construction commended by the learned Counsel for the petitioner for our acceptance is to be accepted, it will create in equal measure uncertainty and confusion in the minds of those who are in the range of the maximum age limit prescribed. It is for that purpose a definite date has to be fixed with clarity and precision in the notification and the same, in our view, cannot be said to be either "off the mark" viewed with reference to the statutory rule or arbitrary or opposed to either the substance of the rule or the real object or intention of the rule making Authority. It is on account of such a piquant and rather peculiar situation that a literal construction of the statutory rule will present itself and the absurdities to which it may lead to, the functional approach or construction approved by the Apex Court as permissible to avoid absurdities and ensure giving proper effect to the real purpose, aim and object of the enactment of the rule and the intention of the Legislature or the very rule making authority, requires to be adopted in this case. We are also unable to accept the submission of the learned Counsel for the petitioner that merely because one or the other words used in the rule is capable of clear cut meaning, there is no scope for interpreting the rule in the manner in which the learned Advocate General would try to impression upon us to be construed. It is only because such words pointed out in the rules, if given there ordinary dictionary or literal meaning, the entire rule as such does not make the proper or sensible reading and does not reflect the real intention or aim of the rule making Authority, that we are constrained to have in this case, recourse to the other well settled and approved rules of constructions, so as to make the rule properly and reasonably workable. Thus construed, there could be no objection, in our view, for the course adopted by the Registry in notifying the cut off date in para 3 of the notification and the same cannot be said to be either arbitrary or unreasonable or in any manner opposed to the spirit or purport or substance of Rule 9(1) of the Higher Judicial Service Rules." 7. We, with great respect and deference find ourselves bound by the aforesaid observations of the Division Bench and the resultant interpretation put upon rule 9 (supra) in the light of the notice/advertisement as was issued by the High Court on 10.6.1998. As has been noticed at the outset, in the present case also we are similarly and identically placed and being bound by the Division Bench judgment have no hesitation but to dismiss the writ petition. 8. As has been noticed at the outset, in the present case also we are similarly and identically placed and being bound by the Division Bench judgment have no hesitation but to dismiss the writ petition. 8. Before parting, however, we do wish to once again refer to the observations made by the Division Bench in Sureshwar Thakur v. High Court of Himachal Pradesh and another (supra) which did adversely comment upon the language employed while drafting Rule 9 of 1973 Rules, because if literal interpretation (as per its plain language) had to be given to Rule 9 and if the formula with respect to determining or fixing upper and lower age limits (based on the cut off date as mentioned in the Rule) as prescribed therein, was to be followed, it would lead to absurdities and also a very, very nebulous and uncertain situation. The quoted observations of the Division Bench in Sureshwar Thakurs case (supra) were so unavoidably pertinent that both the High Court of H.P. on its administrative side and the Government of Himachal Pradesh, being respondents No. 1 and 3 in this petition, ought to have immediately taken due notice thereof so that appropriate steps could have been initiated immediately to suitably and appropriately amend Rule 9 (supra) with a view to remove the anomalous situation and to bring it in conformity with the aforesaid observations of the Division Bench. Very very unfortunately, however, neither the High Court on its administrative side nor the Government of Himachal Pradesh took any step in the aforesaid direction, with the result that the anomalous and uncertain situation has been allowed to continue and hold the field uptill date. 9. It is only because of the inaction on the part of the aforesaid two respondents that complications have arisen time and again leading to repeated recurrence of avoidable situations time and again such as the present one. In order to ensure that such situations do not recur in future, we, before parting do hereby issue a direction and pass an order commanding respondents No. 1 and 3 to ensure that steps are immediately taken to remove the anomalous situation as is occupying in Rule 9 of 1973 Rules, in the light of the aforesaid observations of the Division Bench in Sureshwar Thakurs case (supra). We hope and trust that the needful shall be done by respondents No. 1 and 3 within a period of six weeks from today. If, for any compelling reason it becomes difficult or impossible to accomplish this task within the aforesaid period, it shall be open to these respondents (or either of them) to approach this Court with a prayer for extension of time on tangible grounds and for such compelling reasons as would form the grounds of such an application. The petition is dismissed. No order as to costs. Copy Dasti. Petition dismissed.