S.Rafat Alam, Sudhir Agarwal - (1.) -Heard Sri Ramendra Asthana, learned counsel assisted by Sri Atul Srivastava, of the petitioners and learned standing counsel appearing for respondent Nos. 1 and 2.
(2.) THE petitioners, six in numbers, have filed this writ petition challenging the Advertisement No. 02/2007-08 (Annexure-15 to the writ petition) issued by U. P. Public Service Commission (hereinafter referred to as the "Commission") published in daily news paper 'Rojgar Samachar' dated 11/17.8.2007 and have further sought a writ of mandamus commanding the respondents to hold selection afresh treating all the petitioners eligible therefor and/or by granting relaxation in age. The facts in brief, giving rise to the present writ petition are, that, all the petitioners are qualified for appointment to the post of Homeopathic Medical Officer possessing bachelor's degree in Homeopathic Medicine and Surgery and are duly registered with the Hoemoepathic Medicine Board, U. P., Lucknow. Recruitment to the post of Hoemoepathic Medical Officer is governed by the U. P. Hoemoepathic Medical Service Rules, 1990, (hereinafter referred to as "1990 Rules"). An advertisement was published by the Commission on 21.12.1991 in daily news paper Dainik Jagaran notifying 67 vacancies of Hoemoepathic Medical Officers. The age limit as on 1.7.1991 was 21-35 years in respect to general category candidates relaxable by five years in respect to reserve category candidates. The said recruitment, however, could not proceed since Government withdrew requisition. Thereafter, another advertisement was published in the year 1998 wherein the petitioners appeared before the interview board. However, they were eventually not selected. Now the impugned advertisement has been published notifying 191 vacancies for the post of Hoemoepathic Medical Officers out of which 48 are reserved for Scheduled Castes, 16 for Scheduled Tribes and 46 for Other Backward Class (hereinafter referred to as the "O.B.C."). Besides, five vacancies are notified for female Hoemoepathic Medical Officers, out of which, one is reserved for Scheduled Tribes. We are not concerned in the present writ petition to the vacancies of female Hoemoepathic Medical Officers. The eligibility with respect to age as notified in the impugned advertisement in 21-35 years as on 1.7.2007 and relaxation as prescribed for various categories, as per rules, is also admissible. Since all the petitioners have already attained age of more than 35 years as on 1.7.2007 they are ineligible for applying pursuant to the impugned advertisement. The date of birth of the petitioners as is evident from pages 88 and 94 of the paper book as well as para 5 of the writ petition, as is under : "Sl. Name Date of Birth No. 1. Dr. Rajiv Ranjan Mishra (petitioner No. 1) 3.1.1967 2.Dr. Arun Kumar Sharma (petitioner No. 2) 1.4.1965 3.Dr. Shyam Vir Singh (petitioner No. 3) 1.1.1966 4.Dr. Achchey Lal Navik (petitioner No. 4) 2.7.1960 5.Dr. Akshay Kumar (petitioner No. 5) 10.7.1967 6.Dr. Manwendra Sharma (petitioner No. 6) 18.10.1965." The petitioners No. 1 to 5 have made representations (Annexures-16 and 17 to the writ petition) to the respondents requesting to grant relaxation in the matter of age but having failed to get any response, the present writ petition has been filed challenging the advertisement and the age limit prescribed thereunder.
(3.) SRI Asthana, learned counsel appearing for the petitioners contended that the scheme of 1990 Rules shows that it was incumbent upon the respondents to hold selection for direct recruitment every year and once the respondents failed to hold selection every year, they cannot insist upon, with respect to eligibility of age provided under Rule 10 of 1990 Rules. The scheme of the rules warrants execution and implementation of the entire set of rules in their entirety and if one part of the rule has been violated or breached, the other part of the rule also cannot be adhered to. In support of his submission reliance is placed on the Apex Court decision in State of Maharashtra v. Jagannath Achyut Karandikar, AIR 1989 SC 1133. Arguing that direct recruitment was to be made every year, learned counsel for the petitioners relied upon Rules 10, 14, 26 and 27 of 1990 Rules. Having given our serious thoughts to the matter, however, we do not find any force in the submission and in our view the matter is otherwise covered by a Full Bench judgment of this Court in Civil Misc. Writ Petition No. 65189 of 2006, Sanjay Kumar Pathak v. State of U. P. and others, decided on 25.5.2007 and a Division Bench of this Court (in which one of us (Hon'ble Sudhir Agarwal, J.), was a member) in Civil Misc. Writ Petition No. 20016 of 2007, Sanjay Agarwal v. State of U. P. and others, decided on 15.6.2007.;