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2022 DIGILAW 840 (ALL)

Vijay Kumar Singh v. State of Uttar Pradesh

2022-05-25

VIVEK CHAUDHARY

body2022
JUDGMENT : VIVEK CHAUDHARY, J. 1. Heard Sri Manish Mishra, learned counsel for petitioner assisted by Sri Gaurav Upadhyaya, Advocate and Sri Dilip Pandey, Advocate. Sri Ran Vijay Singh, learned counsel is appearing for respondent Commission and learned Standing Counsel is present for the State. 2. Petitioner has approached this Court praying for a mandamus commanding the respondent no. 2 U.P. Subordinate Services Selection Commission, Lucknow (hereinafter referred to as ‘Commission’) to allow the petitioner to participate in the main examination for the post of Revenue Lekhpal. 3. The facts of the case as per the writ petition are that the Commission held a common Preliminary Entrance Test (PET) in the month of June, 2021, for facing selections for any Class-III post, to be filled up later through the Commission. Petitioner appeared in the said PET examination held on 17.06.2021 and cleared the same. Thus, he became entitled for appearing in selection examination to be held for any Class-III posts by the Commission. On 24.07.2021 Commission issued a proposed program for selections for different posts scheduled to be conducted by the Commission before March, 2022. The selection for the post of Revenue Lekhpal was proposed to be held in November, 2021. The same, however, could not be advertised in November, 2021 but was advertised on 05.01.2022 by Advertisement No. 1 of 2022. Amongst other conditions for eligibility to appear in the selection process for the post of Revenue Lekhpal, one of the condition initially advertised on 05.01.2022 was, that, the age of candidate on 01.07.2021 should not be less than 18 years and not more than 40 years. Therefore, petitioner was qualified as per the said advertisement. The said advertisement, however, was later modified and provided the maximum age limit of 40 years as on 01.07.2022, as per the U.P. Recruitment to Services (Age Limit) (Tenth Amendment) Rules, 2012. Admittedly, petitioner is of more than 40 years on 01.07.2022 as his date of birth is 15.05.1982 and, thus, he has approached this court. 4. Learned counsel for the petitioner submits that petitioner was entitled as per the first advertisement and the change made in the advertisement is arbitrary and illegal. As per the calendar year petitioner ought to be held entitled to appear in the examination. 4. Learned counsel for the petitioner submits that petitioner was entitled as per the first advertisement and the change made in the advertisement is arbitrary and illegal. As per the calendar year petitioner ought to be held entitled to appear in the examination. He further submits that even otherwise the selection process had started when the PET examination was taken in the month of June, 2021 and therefore, the same is the relevant date for the selection process. 5. Opposing the same, learned Standing Counsel submits that PET is general combined test taken for all Class-III posts. The purpose of PET is to reduce the huge number of candidates appearing for all Class-III posts advertised by the Commission, which was putting unnecessary burden on the Commission. He further submits that the validity of the PET is already considered and affirmed in number of writ petitions by this Court. Therefore, the same cannot be treated to be initiation of selection process for a particular post and initiation for selection of a particular post starts only when the vacancies of the said post under its rules are duly notified, which in the present case were advertised on 05.01.2022. Therefore, as per the U.P. Lekhpals Services Rules, 2006 (Lekhpal Rules, 2006), the calendar year would be from 01.01.2022 to 31.12.2022 and, therefore, petitioner is not qualified. 6. I have considered the submissions of learned counsels for parties and have perused the record with their assistance. 7. So far as the first submission, that, the selection process should be treated to have started in the month of June, 2021, when the PET examination was conducted by the Commission is concerned, I do not find any force in the said submission. The PET examination is a general examination. The same is not held for any specific service under any service rules. The same is conducted under the U.P. Subordinate Services Selection Commission Act, 2014 (Commission Act). The same does not make any person entitled for any post whatsoever, but, is only a preliminary test taken for permitting a person to apply for the Class-III vacancies going to be advertised thereafter, till the said PET examination result is in force. Under different service rules the Commission advertised and initiates the selection process. The same does not make any person entitled for any post whatsoever, but, is only a preliminary test taken for permitting a person to apply for the Class-III vacancies going to be advertised thereafter, till the said PET examination result is in force. Under different service rules the Commission advertised and initiates the selection process. It was open for the State Government as well as for the Commission to proceed or not to proceed for the selection of the Revenue Lekhpal under their service rules. In case of non advertisement of the said vacancies petitioner had no vested rights. The right vested in the petitioner after clearing PET examination was only to submit application and appear in the selection process for the vacancies under different rules, as advertised by the Commission. Therefore, it cannot be said that any selection process was initiated under the Lekhpal Rules, 2006 merely by conducting PET examination. Rule-14 of the Lekhpal Rules, 2006 provides that appointing authority shall determine and intimate to the selection committee the number of vacancies to be filled up during course of the year of recruitment. The selection committee stands replaced by the Selection Commission as per the Commission Act. Therefore, it is for the selection commission to advertise the vacancies as per relevant service rules. Thus, the selection process for the post of Revenue Lekhpal cannot be said to have started with the PET examination but initiated when the same were advertised on 05.01.2022 by the Commission. 8. So far as the next submission of learned counsel for the petitioner, that, petitioner is required to be not more than of 40 years in age on 01.07.2021 and not on 01.07.2022, is concerned, the following rules of U.P. Lekhpal Services Rules, 2006 (Lekhpal Rules, 2006) are relevant: “Rule 3(n) ‘Year of Recruitment’ means a period of twelve months commencing on the first day of July of a calendar year. ........... Rule 10. A candidate for direct recruitment to a post in the service must have attained the age of 18 years and must not have attained the age of more than 40 yrs on the first day of July of the calendar year in which vacancies for direct recruitment are advertised. ........... Rule 10. A candidate for direct recruitment to a post in the service must have attained the age of 18 years and must not have attained the age of more than 40 yrs 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. Rule 14. The appointing authority shall determine and intimate to the Selection Committee, the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under rule 6. For making direct recruitment, the vacancies shall be notified in the following manner: (i) by issuing advertisement in the daily newspaper having wide circulation. (ii) by pasting the notice on the notice board of the office or by advertising through Radio/Television and other Employment newspapers. (iii) by notifying vacancies to the Employment Exchange.” Further, Rule 6 of U.P. Recruitment to Services (Age Limit) Rules, 1972 (Age Limit Rules) reads: “Rule 6-Computation of Age - Notwithstanding anything to the contrary contained in any service rules, for the services and posts, whether within or outside the purview of the Public Service Commission, a candidate must have attained the minimum age and must not have attained the maximum age, as prescribed from time to time, on the first day of July of the calendar year in which vacancies for direct recruitment are advertised by the Public Service Commission or any other recruiting authority, or as the case may be, such vacancies are intimated to the Employment Exchange. Provided that nothing in this rule shall apply to a case where such advertisement or intimation has been made before the commencement of the Uttar Pradesh Recruitment to Services (Age Limit) (Fifth Amendment) Rules, 1984.” 9. A bare perusal of Rule-10 of the Lekhpal Service Rules and Rule 6 Age Limit Rules, clearly provide that a candidate must not have attained more than 40 years of age as on first day of July in calendar year in which the vacancies are advertised. A bare perusal of Rule-10 of the Lekhpal Service Rules and Rule 6 Age Limit Rules, clearly provide that a candidate must not have attained more than 40 years of age as on first day of July in calendar year in which the vacancies are advertised. In the present case the vacancies are advertised on 05.01.2022. The person must not have attained the age of more than 40 years as on first of July of the year 2022. Admittedly, petitioner is more than 40 years as on 01.07.2022. Due to the non-obstinate clause in Rule 6 of the Age Limit Rules, it is the Rule 6 which is relevant for our purposes and not Rule-10 of the Lekhpal Rules, 2006 but the same is also in same terms. Even otherwise, the term ‘calendar year’ and term ‘year of recruitment’ are entirely different and the term ‘year of recruitment’ is defined under Rule 3(n) of the Lekhpal Rules, 2006, which means 12 months commencing from first day of July of a calendar year. From the perusal of the same it is clear that the ‘year of recruitment’ and a ‘calendar year’ even as per Rule 3(n) are distinct and separate. The two cannot be interchanged. Further year of recruitment is relevant for Rule 14 and not for determination of age under Rule-10 or Rule-6 of Age Limit Rules. The term ‘year’ is also defined under Section 4(50) of the U.P. General Clauses Act 1904 which means a ‘year’ shall mean a year reckoned according to the British calendar. There is no reason to interpret the word ‘calendar year’ in any other manner. 10. Learned counsel for the petitioner has also placed before this Court a report of the Calendar Reform Committee of Government of India, submitted on 10.11.1955. Learned counsel for the petitioner submits that in the said report the committee referred to number of calendars in use in India and did not find favour with the English calendar for use in India and recommended use of Indian calendar. Therefore, the term calendar year as used in Rule-10 should not be read as British calendar but should be treated to be Indian Calendar. Therefore, the term calendar year as used in Rule-10 should not be read as British calendar but should be treated to be Indian Calendar. Learned counsel for petitioner further relied upon the judgments of Supreme Court passed in case of Malik Mazar Sultan vs. U.P. Public Service Commission, 2006 (9) SCC 507 and Chairman Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Limited, 2007 (8) SCC 705 . 11. I have perused the report of the committee. The said report is only recommendatory in nature. There is nothing to show that the same was ever accepted and enforced, at any point of time. There is nothing to show that while drafting or enforcing the applicable rules, the State Government ever relied upon the said report or referred to any Indian calendar. The use of the month of July in rules itself shows that rules refer to the British calendar and not to an Indian calendar. Therefore, the term ‘calendar year’ in which the vacancies are advertised is the year from the 1st of January to 31st December and, it is the first day of July of the said calendar year on which the person should not have attained the age of more than 40 years. The same in the present case is 2022 as the vacancies were advertised on 05.01.2022. 12. So far as the judgments relied upon the learned counsel for petitioner are concerned, I have perused both the judgments. The same are not applicable to the facts of the present case, as they are on entirely different facts. 13. No other submissions were made by learned counsel for petitioner. 14. Thus, there is no force in the submissions of learned counsel for petitioner. 15. The writ petition is dismissed.