- (1.) R. K. Agrawal, J. In respect of advertisement dated 7/13-10-2006 issued by the U. P. Public Service Commission, Allahabad (hereinafter referred to as "the Commission") inviting applications from the eligible candidates for the post of Civil Judge (Junior Division), for appearing in the U. P. Judicial Service Civil Judge (Junior Division) Examinations, 2006 a Division Bench of this Court while hearing Civil Misc. Writ Petition No. 69148 of 2006, noticed that there are two contradictory judgment of co-ordinate Benches of the same strength, i. e. two Division Benches of this Court, namely Civil Misc. Writ Petition No. 59653 of 2006, J. P. Tiwari & Ors. v. State of U. P. & Ors. , and other connected petitions, decided on 2-11-2006, on the one hand, and Civil Misc. Writ Petition No. 69189 of 2006, Sanjay Kumar Pathak v. State of U. P. & Ors. , decided on 15-12-2006, on the other hand, directed the matter to be placed before the Hon'ble Chief Justice for constitution of a large Bench. Vide order dated 9-1-2007, passed by the Hon'ble Chief Justice, the present Full Bench has been constituted to resolve the controversy.
(2.) ON 26-2-2007 when the matter came up before the Full Bench, it was informed that an application seeking review of the judgment and order dated 16-12-2006 passed by this Court in the case of Sanjay Kumar Pathak (supra) has been filed. Some more writ petitions challenging the validity of the advertisement dated 7/13-10-2006 have also been filed. This Court, vide order dated 26-2-2007 considered it appropriate that all the matters be heard by the Full Bench. The relevant portion of the order dated 26-2-2007 passed by this Court is reproduced below : "vide order dated 22-12-2006 a Division Bench consisting of the Hon'ble B. S. Chauhan and Hon'ble Prakash Krishna, JJ. , had noticed that there is a conflict of opinion in the two judgments of this Court, namely, Civil Misc. Writ Petition No. 59653 of 2006, Jai Prakash Tiwari & Ors. v. State of U. P. & Ors. , and other connected petitions, decided on 2-11-2006 and Civil Misc. Writ Petition No. 65189 of 2006, Sanjay Kumar Pathak v. State of U. P. & Ors. , decided on 15-12-2006 [since reported in 2007 (1) LBESR 517 (All)], and the matter has been referred to a larger Bench to resolve the conflict in the aforesaid two judgments. We have been informed that a review application has been filed in Civil Misc. Writ Petition No. 65189 of 2006, Sanjay Kumar Pathak v. State of U. P. , decided on 15-12-2006, which is pending. As this Full Bench has been constituted to resolve the conflict in the two decisions, referred to above, and to decide which decision lays down the correct law, it would be appropriate, in order to avoid conflicting judgment of this Court, that as the matter is being considered by the Full Bench under the orders dated 9-1-2007 passed by the Hon'ble Chief Justice, the review application and any other petition relating to the same advertisement pending in this Court, be also considered by the Full Bench. Let the matter be placed before the Hon'ble Acting Chief Justice for passing the necessary orders. " Hon'ble the Acting Chief Justice, vide order dated 26-2-2007, directed to place the review application filed in the case of Sanjay Kumar Pathak (supra) and other connected writ petitions, before the Full Bench. This is how the application seeking review of the judgment and order dated 15-12-2006 passed in Sanjay Kumar Pathak (supra) and all other writ petitions have come up before this Court. Law laid down in J. P. Tiwari's case : In the case of J. P. Tiwari (supra), this Court while interpreting the provisions of the U. P. Judicial Service Rules, 2001 (hereinafter referred to as "the Rules"), has held as follows : (i) The phrase "process of recruitment is initiated by the appointing authority", occurring in Rule 4 (m), means the date on which the requisition is sent by the Governor to the Commission under Rule 15. The requisition was sent in August, 2006; (ii) The relevant date for determining the upper age limit, in case of a general candidate, which is 35 years, and in respect of candidates belonging to reserved category, which is 40 years, is 1-7-2007 according to first part of Rule 10. It repelled the contention of the writ petitioners that the upper age limit of all such candidates who were within the upper age limit on 1-7-2006, should also be treated to be eligible to appear in the examination; (iii) The second proviso to Rule 10 is not attracted as the examination is being held in the year of recruitment itself; (iv) It repelled the contention that if the examination, in any year, is not held, the benefit of the second proviso to Rule 10 would be available. The Court had held that the Rule only says that the examination shall be held in every year of recruitment and not in every year, i. e. , every calendar year; (v) It repelled the contention that the definition of "year of recruitment", in Rule 4 (m), should be read down to include every calendar year irrespective of initiation of process of recruitment by the appointing authorities in all cases where vacancies are existing and yet recruitment process is not initiated; (vi) It declined to hold up the selection and appointment on the ground that the identification has not been done so far for reservation for physically disabled person on the post of the Civil Judge (Junior Division), as per direction of the Full Bench of this Court in the case of Sarika v. State of U. P. & Ors. , 2006 (1) LBESR 277 (All) (FB) : 2005 (4) ESC 2378; (vii) The Court has further held that the persons born on 1-7-1972 would have attained the age of 35 years 30-6-2007 and have, therefore, crossed the upper age limit on 1-7-2007. The clarification contained in the advertisement, "that is they must not have been born before 2nd July, 1972" is correct. Law laid down in Saniay Kumar Pathak's case :
(3.) IN the case of Sanjay Kumar Pathak (supra) this Court has held that : (i) The process of recruitment seems to be initiated on 30-12-2004. The process of recruitment has been held to have been initiated on 30-12-2004 on the basis of the letter of even date of the State Government sending requisition to the High Court to identify the vacancies. (ii) The candidates whose requisite age is falling from such period till the date of advertisement, are to be allowed to participate. (iii) Since the State is the appointing authority, it is natural for the State to relax the age of the candidates to accommodate all of them in the forthcoming selection to make the selection process up- to-date. (iv) On the basis of the statement made by Mr. Vijendra Singh, learned Chief Standing Counsel, that the State of U. P. has no difficulty in accommodating the candidates by allowing them to sit in the examination relaxing the age on the basis of fresh requisition, the Court allowed the writ petition laying down the aforesaid principle and also on the concession made on the part of the State and quashed the requisition already made by the State of U. P. and consequently, the advertisement being advertisement dated 7/13-10-2006. From the aforesaid, it would be seen that the two Division Benches of this Court have taken a contrary stand vis-a-vis the initiation of process of recruitment. While in the case of J. P. Tiwari (supra) the process of recruitment has been held to have been initiated in August, 2006 when the State Government had sent the requisition to the Commission, in the case of Sanjay Kumar Pathak (supra), this Court has held that the process of recruitment had started on 30-12-2004 when the State had sent the requisition to the High Court to identify the vacancies. Facts of the case : Civil Misc. Writ Petition No. 69148 of 2006 :;