JUDGMENT Amitava Lala, J.
1. Learned Counsel appearing for the petitioner contended before this Court that he has a very valid case in support of the contention of the petitioner on the issue particularly on the basis of Rule 4(m) read with third proviso to Rule 10 of the U.P. Judicial Service Rules, 2001. He also contended that his case is backed by the judgment Malik Mazhar Sultan and Anr. v. U.P. Public Service Commission and Ors. He further contended that when the State being recruitment authority sent requisition to the High Court, process of recruitment seems to be started and the candidates, who became eligible then but not called for interview due to delay in selection, can not be said to be debarred from participating in interview because of overage. There is no fault on the part of the candidates. In (supra) the Supreme Court categorically held "The rules postulate the timely determination of vacancies and timely appointments. The non-filling of vacancies for long not only results in the avoidable litigation but also results in creeping of frustration in the candidates. Further, non-filling of vacancies for long time, deprives the people of the services of the Judicial Officers. This is one of the reasons of huge pendency of cases in the courts." Supreme Court further held as under:
26. Now, let us examine the second proviso to Rule 10. It stipulates that where candidate was eligible in age to appear at the examination in any year of recruitment in which no such examination was held, he shall be deemed to be eligible in age to appear in the next following examination. The benefit of proviso comes into operation if examination in any year of recruitment is not held so as to give relief to those candidates who would have been otherwise eligible in age but for not holding of the examination. There are two different categories dealt with under Rule 10 for the purpose of eligibility from age viewpoint. One under main part of Rule 10 and two under second proviso of Rule 10. Under first part, the determining factor for age is date of advertisement Under second part, determining factor for age is as on year of recruitment. The age requirement under main part of Rule 10 is on the requisite date following the year in which Notification for holding examination inviting application is published. The expression 'Notification' in the context means issued of advertisement inviting applications. Under the first part, therefore, the relevant date for determining age would be 1st July, 2004, the advertisement having been issued on 22-28 November, 2003. The proviso, however, makes eligible, from the viewpoint of age, even those candidates to appear in the next following examination, who were eligible in age if examination was held in year of recruitment. That is the reason that under second proviso for determining age, the relevant fact is not the publication of notification as in main part of Rule 10, but is age of a candidate to appear at the examination in any year of recruitment in which examination was not held. The candidate shall be deemed to be eligible in age to appear in the next following examination. The year of recruitment has been held to be 1st July, 2002 to 30th June,2003. The examination in year of recruitment was not held. The examination was held in March, 2004. In such a situation, candidates would be entitled to benefit of age requirement in terms of second proviso.
27. According to Rule 4(m), the year of recruitment means a period of twelve months commencing from the first day of July of the calendar year in which the process of recruitment is initiated by the Appointing Authority. The Appointing Authority within the meaning of the Rules means the Governor of Uttar Pradesh, in other words, the State Government of Uttar Pradesh. As already noted above, the process of recruitment was initiated on 23rd November,2002. The determination of vacancies and procedure for recruitment to the service has been provided for in Rule 15. After the vacancies are determined, the same are required to be intimated to the Commission to be filled in during the year of recruitment. That process commenced by sending communication dated 23rd November, 2002. The second and third communications dated 29th July,2003 and 11th November, 2003 by the Government to PSC were in continuation of the first one. The advertisement was published on 22-28th November,2003 after the third communication. The relevant year for main part of Rule 10 is the one next following the year in which the publication for holding the examination is published. It would be 1st July, 2004. For the purpose of the proviso, the recruitment year is 1st July, 2002 to 30th June, 2003 and age requirement therein would be as on 1st July,2002 in view of Rule 4(m) read with Rule 10 second proviso. Thus, those who were of requisite age as on 1st July,2002 would be eligible under second proviso and also those who were of requisite age as on 1st July,2004 as per main part of Rule 10. However, it seems difficult to comprehend how candidates of requisite age on 1st July, 2001 would be eligible for the recruitment in question. Though Rule 10 is not happily worded yet we find it difficult to sustain the conclusion of the High Court that the advertisement issued on 22-28 November, 2003, can be assumed to be issued before 31st December,2002. The interpretation of Rule 10 placed by us is also in accord within the object of the Rules.
28. On harmonious consideration of the Rules, it seems evident that Rule 10, its main part and the second proviso read with Rule 4(m), cater for two category of candidates. The latter makes those eligible who are eligible in the recruitment year in which process of recruitment is initiated by the appointing authority. In this category, in the present case, would fall those who were eligible as on 1st July, 2002. In main part of Rule 10, those who become eligible on 1st July, 2004, would be eligible. In this view, those who were eligible on 1st July, 2002 and also those who were eligible on 1st July,2004 would be eligible to be considered for appointment to the posts of Civil Judge (Junior Division).
2. In this case the dispute is that the State had given the requisition to the High Court to fill up the posts on 30th December, 2004 and on several occasions thereafter i.e. 21st June, 2005 and 10th October, 2005, but the High Court did not take any step in spite of the requisition given by the State. Ultimately, the High Court has approved the proposal of the Government only on 23rd January, 2006. However, the Commission received the requisition only on 12th September, 2006, thereby the State has also delayed even after getting the approval of the High Court. Now, the question has been raised in view of the Supreme Court judgment that why not the candidates, who were eligible for the period but were not got the opportunity due to laches on the part of the authority or the authorities, would be given opportunity by relaxing their age to participate in the selection process on the basis of the advertisement by making application or if the application is already made, on the basis of such existing application.
3. We have called upon the High Court, Public Service Commission and the State to file their respective affidavits, but no affidavit has been filed by any of the parties. In the circumstances, the Court has no other alternative but to call upon the parties to make their respective submissions. Mr. Amit Sthalekar, learned Counsel appearing for the High Court, does not want to make any submission. However, Mr. M.A. Qadeer, learned Counsel appearing for the Public Service Commission, contended that the preliminary examination is going to be held on 31st December, 2006, and the final examination is going to be held in the month of June, 2007 on the basis of result of such preliminary examination. Those who have already applied, they can be allowed by the Court to sit for the examination but if this Court thinks that the results will not be declared without the leave of the Court, the same will be kept in the sealed cover. So far as the others are concerned, steps can be taken subject to the decision of this writ petition. Incidentally, from the very beginning he is raising an objection about hearing of the matter by this Bench having determination of service matters and placed by the Registry. He said that since the matter is related to service of the judicial officers, it would be heard by different Bench having determination. According to us, since the petitioner hereunder is prospective candidate for his future job, his matter can be taken up only by the Bench having miscellaneous jurisdiction of service matters. In further, the earlier writ petition filed' by the petitioner/s about giving opportunity to the handicapped candidates was dismissed by this Bench in presence of the High Court, the Public Service Commission and the State through their respective Counsel when no objection was raised by the learned Counsel for the Commission. Hence, the ground, which has been taken by the Commission, is totally hypertechnical and illusory, therefore, ignorable in nature.
4. According to us, the Commission has no role to play excepting to act on the basis of the requisition made by the State i.e. the appointing authority. If the appointing authority accepts any position to give further requisition upon canceling the earlier one, the Commission has nothing to say in this regard.
5. Mr. Vijendra Singh, learned Chief Standing Counsel appearing for the State, contended that the State has no difficulty in accommodating the candidates by allowing them to sit for examination relaxing the age on the basis of the fresh requisition, as the Court suggested to regularize the backlog and to adopt year to year process for the future.
6. According to us, the State being the appointing authority if want to accommodate the candidates relaxing the age by giving a fresh requisition to regularize the matter for the future, the Court can not stand in the way. Moreover, the ratio of the Supreme Court judgment supports the cause but restricted itself from 01st July, 2002 since the process of recruitment started from such period not before. In the instant case, the process of recruitment seems to be initiated from 30th December, 2004, the candidates, whose requisite age is falling from such period till the date of advertisement, are to be allowed to participate following the principle as laid down by the Supreme Court. However, since the State is the appointing authority, it is entirely for the State to relax the age of the candidates to accommodate all of them in the forthcoming selection to make the selection process upto date. Therefore, when the State through the learned Chief Standing counsel accepts the position to give accommodation to the candidates, we do not find any reason as to why the writ petition will not be allowed. Therefore, the writ petition is allowed laying down the principle on the concession on the part of the State. As a result whereof, the requisition already made by the State stands cancelled. Consequential advertisement being Advertisement No. A-6/E-1/2006 dated 7-13th October, 2006 (being Annexure-2 to this writ petition) is quashed and the schedule of the examinations are also cancelled. The State is entitled to issue fresh requisition on the basis of their accommodation relaxing the age and in such case the Public Service Commission will hold the examination on the basis of the fresh requisition not otherwise. However, the candidates, who have already made applications for the purpose participating, need not to give application afresh.
7. However, no order is passed as to costs.
V.C. Misra, J.
8. I agree.