JUDGMENT M. Katju and Umeshwar Pandey, JJ.
1. Heard learned counsel for the parties.
2. This writ petition has been filed against the Impugned order of the U. P. Public Service Commission, dated 24.5.2001 (Annexure-15 to the writ petition) and for a mandamus directing the respondents to consider the candidature of the petitioner for appointment on the post of Associate Professor and not to reject him on the ground of age bar.
3. The petitioner has applied for appointment as Associate Professor in Cardiology in M.L.N. Medical College, Allahabad. By the impugned order dated 24.5.2001 (Annexure-15 to the writ petition) his application has been rejected on the ground that the petitioner is overage.
4. Rule 9 of the U. P. State Medical Colleges Teachers Services Rule, 1990, states :
"A candidate for direct recruitment to the post of the Principal must have attained the age of 45 years and must not have attained the age of more than 50 years and for various other categories of posts in the service, must not have attained more than the maximum age on the first day of July of the year of recruitment as given below :
(i) Assistant Professor..............35 years
(ii) Associate Professor..............45 years
(iii) Professor........................45 years Provided that the upper age limit in the case of the 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."
5. A perusal of the above Rule shows that for the post of Associate Professor a candidate must not have attained more than 45 years of age on the first day of July of the year of recruitment.
6. Learned counsel for the petitioner submitted that the year of recruitment should be treated as the year in which the vacancy arose. We cannot accept this contention.
7. Admittedly, the advertisement, inviting applications for the said post was issued on 26.8.2000 and hence, in our opinion the petitioner should not have crossed the age of 45 years on 1.7.2000. However, the petitioner had crossed the age of 45 years on that date, and hence in our opinion he was ineligible.
8. Learned counsel for the petitioner submitted that such an interpretation as we are giving causes hardship to the candidate who becomes ineligible on the ground of age bar merely because the recruitments were not held at the time when they were eligible. In our opinion, hardship does not permit us to change the law. This Court has to exercise Judicial restraint and cannot take over the function of the Legislature. If there is hardship, it is for the Legislature or the State Government to amend the rules, but this Court has to read the rules as they stand. We cannot agree that the year of recruitment means the year in which the vacancy arose.
9. In the connected Writ Petition No. 30815 of 2001, Sri A. K. Goel, learned counsel for the petitioner submitted that on the strength of the letter dated 27.1.2001 (Annexure-7 to the writ petition) the State Government has granted exemption under Rule 27 of the Rules. We have perused the said letter dated 27.1.2001 and we do not agree that the State Government has granted any such exemption regarding the age bar. The said letter only asked the U. P. Public Service Commission to consider the matter, and we find that the Public Service Commission has rejected the proposal vide letter dated 27.1.2001. Hence, there is no exemption to the age bar. In Writ Petition No. 36982 of 2003, Dr. Muzaffar Naseem v. V. P. Public Service Commission, decided on 25.8.2003 and in Writ Petition No. 30157 of 2003. Dr. Satyendra Kumar v. State of U. P., decided on 17.7.2003, Division Benches of this Court held that the High Court could not change the age of qualification. In Dr. M.V. Nair v. Union of India, (1993) 2 SCC 429, the Supreme Court observed (vide para 9) :
"It is well-settled that suitability and eligibility have to be considered with reference to the last date of receiving the applications, unless of course the notification calling for applications itself specifies the said date."
10. In U. P. Public Service Commission v. Alpana, 1994 (2) AWC 675 (SC) : (1994) 2 SCC 723, the Supreme Court held that eligibility conditions should be examined as on the last date of receipt of applications by the Commission.
11. In Harpal Kaur Chahal v. Director, (1995) Supp (4) SCC 706, the Supreme Court observed :
"It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates who possessed all the qualifications as on that date alone are eligible to apply for and to be considered for recruitment according to Rules."
12. In State of Rajasthan v. R. Dayal and Ors., (1997) 10 SCC 419, the Hon'ble Supreme Court, while considering a case for promotion, held that the eligibility for promotion must be as in the year when the vacancies arose. However, that was not a case of direct recruitment. Hence, this decision is distinguishable.
13. In Ashok Kumar Sharma v. Chandra Shekhar and Ors., (1997) 4 SCC 18, the Hon'ble Supreme Court held that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be adjudged with reference to that date and that date alone.
14. In Utkal University, etc. v. Dr. Nrusingha Charan Sarangi and Ors., AIR 1999 SC 943 and Gopal Krushna Rath v. M. A. A. Baig, AIR 1999 SC 2093, the Hon'ble Supreme Court again reiterated that the eligibility is to be assessed as per the Rules existing on the last date of submission of the applications.
15. In Union of India v. Sudhir Kumar Jaiswal (1994) 4 SCC 212, the Supreme Court rejected the candidature of a candidate who was only one day overage.
16. No doubt, there will be hardship to the petitioner and many others by the interpretation we are taking but as the latin maxim states "dura lex, sed lex" which means "the law is hard, but it is the law".
17. For the reasons given above there is no merit in this petition. It is dismissed.