Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10836 OF 2013

(Arising out of SLP (C) No. 23171 of 2012)

Sasidhar Reddy Sura .....Appellant

Versus

The State of Andhra Pradesh & Ors. …..Respondents

WITH

CIVIL APPEAL NO. 10837 OF 2013

(Arising out of SLP (C) No. 24313 of 2012)

J U D G M E N T

ANIL R. DAVE, J.

1.Leave granted.

2.The appellant, a candidate who aspired to be a District and

Sessions Judge, has filed this Appeal challenging the validity of

the Judgment and Order dated 17

th

July, 2012 delivered by the

High Court of Andhra Pradesh in Writ Petition No. 34683 of 2011.

Page 2 3.The grievance which had been ventilated by the appellant before

the High Court was that he had not been appointed to the post of

District and Sessions Judge. In pursuance of an advertisement,

dated 19

th

August, 2010 published by the High Court of Andhra

Pradesh inviting applications for appointment to 18 (eighteen)

posts of District and Sessions Judges (Entry Level) in the A.P.

State Judicial Service, the appellant had applied for the said post.

He had taken the written examination and also appeared in the oral

interview and he had found his name in the select list. Though the

appellant found his name in the select list, he was not appointed to

the post in question for the reason that he had not completed 35

years of age at the time when he had submitted his application or at

the time when the advertisement had been issued and also for the

reason that he had not completed seven years standing at the bar as

an advocate.

4.As the appellant had not been appointed to the post in question, he

had filed the aforestated Writ Petition before the High Court of

Andhra Pradesh. While deciding the Writ Petition, the High Court

had come to a conclusion that though the appellant had completed

seven years as an advocate, he had not attained the age of 35 years

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Page 3 at the time when the advertisement had been issued i.e. on 19

th

August, 2010 and therefore, the appellant was not eligible to be

appointed to the post in question. Thus, on one count the petition

filed by the appellant had failed and therefore, by filing this appeal

the appellant has approached this Court contending that it was not

necessary for him to have completed 35 years of age for being

appointed to the post of the District and Sessions Judge (Entry

Level) in the A.P. Judicial Service.

5.The learned counsel appearing for the appellant had submitted that

it was not necessary for the appellant to have completed the age of

35 years for being appointed to the post in question as there is no

provision in the Andhra Pradesh State Judicial Service Rules, 2007

(hereinafter referred to as the ‘Rules’) to the effect that the

candidate, to be appointed to the post in question, must have

completed 35 years of age. He had submitted that the High Court

committed an error by coming to the conclusion that simply

because the Justice Shetty Commission (hereinafter referred to as

‘the Commission’) had recommended that a person who has

completed 35 years of age should only be appointed as a District

and Sessions Judge, the High Court, on an erroneous ground

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Page 4 decided not to appoint the appellant to the post in question.

According to him the Commission had merely made certain

suggestions with regard to appointment of deserving candidates in

judiciary so as to see that the judiciary becomes stronger. In an

effort to enhance the standard of judges and judiciary, the

Commission headed by Justice Shetty had been appointed and

certain recommendations had been made by the said Commission.

The said recommendations, according to the learned counsel

appearing for the appellant, were merely recommendatory in

nature and by no stretch of imagination, the said suggestions could

have been accepted unless they were supported by relevant

recruitment rules. Ultimately he had also submitted that if the

recruitment rules are at variance with the recommendations of the

Commission, the recruitment rules are to be followed and not the

recommendations made by the Commission.

6.The learned counsel had relied upon certain judgments so as to

buttress his submissions. He had relied upon the judgment

delivered in the case of Syed T.A. Naqshbandi & Ors. v. State of

Jammu & Kashmir and Ors. (2003) 9 SCC 592. He had drawn

our attention to para 8 of the said judgment which reads as under:

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Page 5 “…The conditions of service of members of any

service for that matter is governed by statutory rules

and orders, lawfully made in the absence of rules to

cover the area which has not been specifically

covered by such rules, and so long they are not

replaced or amended in the manner known to law, it

would be futile for anyone to claim for those

existing rules/orders being ignored yielding place to

certain policy decisions taken even to alter, amend

or modify them. Alive to this indisputable position

of law only, this Court observed at Para 38, that " we

are aware that it will become necessary for service

and other rules to be amended so as to implement

this judgment". Consequently, the High Court could

not be found fault with for considering the matters in

question in the light of the Jammu and Kashmir

Higher Judicial Service Rules, 1983 and the Jammu

and Kashmir District and Sessions Judges (Selection

Grade Post) Rules, 1968 as well as the criteria

formulated by the High Court….”

7.The aforestated observations made by this Court clearly state that

till the existing recruitment rules are amended, suggestions made

by the Commission should not be taken into account. The learned

counsel had submitted that the Rules governing provisions with

regard to recruitment of a District and Sessions Judge did not

incorporate any restriction with regard to minimum age for being

appointed as a District and Sessions Judge and therefore, the

recommendation made by the Commission with regard to

minimum age could not have been a reason for not giving

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Page 6 appointment to the appellant. He had drawn our attention to the

contents of the advertisement which pertain to qualifications and

age of the candidate for appointment to the post of a District and

Sessions Judge. The relevant portion of the advertisement reads

as under:

“ Qualifications and age : The applicant for the

above said post should be (a) an advocate of not

less than seven years standing at the Bar (b) must

not have completed 45 years of age on the first day

of August, 2010 (relaxation by three years in the

upper age limit in respect of persons belonging to

the Scheduled Castes, the Scheduled Tribes and

Backward Classes) and (c) of sound health and

active habits and free from any body defect or

infirmity which render him/her until for such

appoint.”

8.The aforestated portion of the Advertisement merely states that a

candidate must not have completed 45 years of age on the 1

st

day

of August, 2010 and the appellant had not completed 45 years of

age as on 1

st

August, 2010. The Advertisement as well as the

Rules do not say anything with regard to minimum age of a

candidate and therefore, the concept of minimum age being

brought in by the High Court was erroneous and thus, the view

expressed by the High Court cannot be accepted.

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Page 7 9.He had further submitted that the aforestated judgment delivered in

the case of Syed T.A. Naqshbandi’s case (supra) had been

followed by this court in the case of Rakhi Ray & Ors . v. High

Court of Delhi & Ors. [(2010) 2 SCC 637].

10.The learned counsel had also drawn our attention to the provisions

of Article 233 of the Constitution of India, which deals with

appointment to the post of a District and Sessions Judge. The said

Article reads as under:

“Article 233:Appointment of district judges

(1) Appointments of persons to be, and the posting and

promotion of, district judges in any State shall be made by the

Governor of the State in consultation with the High Court

exercising jurisdiction in relation to such State

(2) A person not already in the service of the Union or of the

State shall only be eligible to be appointed a district judge if he

has been for not less than seven years an advocate or a pleader

and is recommended by the High Court for appointment.”

11. The learned counsel had submitted that there is no provision with

regard to minimum age in the aforestated Article and therefore, the

High Court was in error in rejecting the petition filed by the

appellant on the ground that the appellant had not attained the age

of 35 years at the time of publication of the advertisement.

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Page 8 12.For the aforestated reasons, the learned counsel had submitted that

the view expressed by the High Court is erroneous and therefore, this

Appeal should be allowed and directions should be given that the

appellant be appointed as a District and Sessions Judge forthwith with

retrospective effect and should also be paid salary from the date on

which he ought to have been appointed.

13.On the other hand, the learned counsel appearing for the High Court

had fairly submitted that though there was a recommendation by the

Commission with regard to fixing of minimum age for being

appointed as a District and Sessions Judge, the Rules governing

appointment to the post in question did not make any provision with

regard to minimum age.

14.The learned counsel appearing for the other selected candidates also

made similar submissions.

15.We have heard the learned counsel at length and have also perused the

judgments referred to by the learned counsel and the impugned

judgment.

16.Upon hearing the learned counsel and looking at the relevant

provisions governing appointment to the post of a District and

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Page 9 Sessions Judge (Entry Level) in the A.P. Judicial Service, we are not

persuaded to agree with the view expressed by the High Court.

17.The relevant provisions pertaining to eligibility for being appointed to

the post of District Judges have been incorporated in clause V of the

Rules, which read as follows:

“1. District Judges : A person to be appointed to the category

of District Judges by direct recruitment shall be :

a.An advocate of not less than seven years standing at the

Bar

b.A person, who has not completed forty five years or age on

the month in which the notification inviting applications

for such appointment is published in the Andhra Pradesh

Gazette.

c.A person of sound health and active habits and free from

any bodily defect or infirmity, which tender him, unfit for

such appointment.

Provided that the upper age limit in respect or persons

belonging to the Scheduled Castes; the Scheduled Tribes

and Backward Classes is relaxable by three years.”

18.Upon perusal of the above clause, it is very clear that for being

appointed to the post in question, an advocate should have at least

seven years of standing at the bar and he should not have completed

45 years of age in the month in which the Notification inviting

9

Page 10 applications for such an appointment is published in the Andhra

Pradesh Gazette. The said clause does not provide for any minimum

age and therefore, it is very clear that the Rules provide only for the

maximum age limit but not for any minimum age. Thus, the concept

of ‘minimum age’ for being appointed to the post in question is not

incorporated in the Rules.

19.The said concept, with regard to the minimum age, has been brought

only from the report of the Commission. For the reasons recorded in

the report of the Commission, the Commission was of the view that

the post of a District and Sessions Judge, being an important post,

which not only requires integrity and intelligence but also requires

maturity, the Commission was of the view that a person not having

completed 35 years of age should not be appointed to the said post. It

is pertinent to note that this was merely a recommendation or

suggestion made by the Commission. The recommendation or

suggestion, if not supported by the Rules, cannot be implemented. In

the instant case, the Rules are silent with regard to the minimum age.

It only speaks about the maximum age. In the circumstances, one

cannot read provisions incorporated in the report of the Commission

into the Rules. The Rules are statutory and framed under the

10

Page 11 provisions of Article 309 of the Constitution of India. In our opinion,

if the recommendations made by the Commission and the statutory

Rules are at variance, the provisions incorporated in the Recruitment

Rules have to be followed. It is pertinent to note that when such a

question had been raised before this Court, in the case of Syed T.A.

Naqshbandi’s case (supra), this Court had also observed that till

relevant recruitment rules are suitably amended so as to incorporate

the recommendations made by the Commission, provisions of the

statutory rules must be followed.

20.In the instant case, the Rules do not say anything with regard to the

minimum age of a candidate to be selected to the post in question

whereas the Commission had expressed its view in its report that only

after completion of 35 years of age a person should be appointed as a

District and Sessions Judge but the said recommendation has not been

incorporated in the Rules framed by the High Court for giving

appointment to the post in question.

21.In the aforestated circumstances, the appellant, who had not

completed 35 years of age at the relevant time could not have been

denied the appointment to the post in question simply because of his

being under age as per the recommendations of the Commission

11

Page 12 especially when there is no provision in the Rules that a candidate

must have completed 35 years of age for being appointed to the post

of a District and Sessions Judge.

22.In our opinion, the High Court was in error while giving undue

weightage to the recommendations made by the Commission,

especially when the Rules do not provide for any minimum age for the

appointment to the post in question. Moreover, even Article 233 of

the Constitution of India is also silent about the minimum age for

being appointed as a district judge.

23.For the aforestated reasons, we are in agreement with the submissions

made by the learned counsel appearing for the appellant and therefore,

we quash the impugned judgment so far as it pertains to the present

appellant and we direct that the appellant shall be appointed to the

post in question with effect from the date on which he ought to have

been appointed, however, he shall not be paid salary for the period

during which he has not worked as a District and Sessions Judge. The

appellant shall also be placed at appropriate place in the seniority list

of the District Judges after considering his position in the merit list.

We are sure that the respondent- High Court as well as the State shall

12

Page 13 do the needful for giving an appointment to the appellant at an early

date.

24.The appeal stands disposed of as allowed with no order as to costs.

C.A.No. 10837/2013

(Arising out of SLP(C) No.24313/2012)

1.Leave granted.

2.As the appellant had been desirous of being appointed as a District

and Sessions Judge (Entry Level) in the A.P. State Judicial Services,

she had applied for the post in question. She had been selected for the

post in question and her name was included in the select list at no.16.

3.The selection of the appellant had been challenged by some

candidates by filing W.P.No.894 of 2012 in the High Court of Andhra

Pradesh on the ground that the appellant had not secured minimum

required marks in the interview and she had not attained 35 years of

age at the time of publication of the advertisement and therefore, she

could not have been selected. The aforestated petition was allowed

but it was allowed only on the ground of age limit of the appellant.

The High Court was of the view that as the requirement of minimum

marks had been done away with by virtue of an amendment made to

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Page 14 Rule 6(4) & (10) of the A.P. State Judicial Service Rules, 2007 vide

G.O. Ms. No.132, dated 16.11.2011, it was not necessary for the

appellant to secure minimum marks in the interview for being eligible

for appointment.

4.Thus, the appellant was not appointed only for the reason that she had

not completed 35 years of age at the time when the advertisement

inviting applications for the post in question had been published.

5.By virtue of an order passed in C.A.No.10836 of 2013 arising out of

SLP(C) No.23171 of 2012, this Court has already held that there is no

minimum age qualification for being appointed to the post in question

and therefore, in our opinion, the appellant could not have been

denied appointment to the post in question on the ground that she had

not completed 35 years of age at the time when the advertisement had

been published.

6.For the reasons recorded in C.A.No.10836 of 2013 arising out of

SLP(C) No.23171 of 2012, the present appeal is allowed and it is

directed that the High Court as well as the respondent-State will do

the needful for giving appointment to the appellant with retrospective

effect i.e. from the date on which she ought to have been appointed,

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Page 15 however, she shall not be paid salary for the period during which she

has not worked as a District & Sessions Judge. We are sure that the

respondents would do the needful for the appointment of the appellant

at an early date.

7.The appeal is allowed with no order as to costs.

………………................................J.

(ANIL R. DAVE)

….……...........................................J.

(DIPAK MISRA)

New Delhi

December 05, 2013

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