SASIDHAR REDDY SURAversusTHE STATE OF ANDHRA PRADESH & ORS.

                  [2013] 12 S.C.R. 985

                SASIDHAR REDDY SURA                           A
                             v.
      THE STATE OF ANDHRA PRADESH & ORS.
           (Civil Appeal No. 10836 of 2013)
                  DECEMBER 05, 2013
                                                               B
        [ANIL R. DAVE AND DIPAK' MISRA, JJ.]

      Judicial Service - A.P. State Judicial Services -
Appointment - To the post of District and Sessions Judge
(Entry Level) - Eligibility - Absence of minimum age C
qualification - Effect - Appellant, though included in select
list, not appointed as he had not completed 35 years of age
at the time when the advertisement inviting applications for
the post in question had been published - Justification - Held:
Not justified - In the instant case, the relevant Rules provide D
only for the maximum age limit but do not say anything with
regard to the minimum age of a candidate to be selected to
 the post in question - Though Justice Shetty 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 E
 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 - In the .
 circumstances, the appellant, who had not completed 35 years
 of age at the relevant time could not have been denied F
 appointment to the post in question simply because of his
 being under age as per the recommendations of the Justice
  Shetty Commission 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 G
  Judge - High Court erred in giving undue weightage to
  recommendations made by the Justice Shetty Commission,
  especially when the Rules did not provide for any minimum
  age for appointment to the post in question - Moreover, even
                              985                                 H
    986      SUPREME COURT REPORTS             [2013] 12 S.C.R.


 A Article 233 of the Constitution is also silent about the
    minimum age for being appointed as a District judge -
    Andhra Pradesh State Judicial SeNice Rules, 2007 - Clause
    V - Constitution of India, 1950 - Article 233.

       In pursuance of advertisement published by the
8
   High Court of .Andhra Pradesh Inviting applications for
  appointment to posts of District and Sessions Judges
  (Entry Level) In the A.P. State Judicial Service, the
  appellant applied for the said post. He took the written
  examination and also appeared in the oral interview.
C 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
D reason that he had not completed seven years standing
  at the bar as an advocate.

        As the appellant was not appointed to the post In
    question, he filed Writ Petition before the High Court. The
E High Court held that though the appellant had completed
    seven years as an advocate, he had not attained the age
    of 35 years at the time when the advertisement had been
  · issued and therefore, the appellant was not eligible to be
    appointed to the post In question and hence, the present
F appeal.
        Disposing of the appeals, the Court
       HELD: 1. The relevant provisions pertaining to
  ellglblllty for being appointed to the post of District Judges
G have been Incorporated In clause V of the Andhra Pradesh
  State Judicial Service Rules, 2007. 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
H completed 45 years of age in the month In which the
 SASIDHAR REDDY SURA v. STATE OF ANDHRA               987
               PRADESH

Notification inviting applications for such an appointment A
 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 B
  post in question is not incorporated in the Rules. The said
  concept, with regard to the minimum age, has been
  brought only from the report of the Justice Shetty
   Commission. For the reasons recorded in the report of
   the Commission, the Commission was of the view that the c
   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 D
    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 E
     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 provisions of Article 309 of the Constitution of India.
     If the recommendations made by the Commission and the
     statutory Rules are at variance, the provisions F
     incorporated in the Recruitment Rules have to be
     followed. [Paras 17, 18 and 19) [994-G; 995-D-H; 996-A-C]
      1.2. In the instant case, the Rules do not say anything
  with regard to the minimum age of a candidate to be G
  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 sho.uld be
  appointed as a District and Sessions Judge but the said
  recommendation has not been incorporated in the Rules H
     988     SUPREME COURT REPORTS            [2013] 12 S.C.R.


 A framed by the High Court for giving appointment to the
   post in question. [Para 20] [996-E-F]

       1.3. In the aforestated circumstances, the appellant,
  who had not completed 35 years of age at the relevant
8 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
  especially when there is no provision in the Rules that a
  candidate must have completed 35 years of age for being
C appointed to the post of a District and Sessions Judge.
  [Para 21] [996-F-G]

       1.4. The High Court was in error while giving undue
  weightage to the recommendations made by the
  Commission, especially when the Rules do not provide
D 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. [Para 22] [996-H; 997-A-B]

        Syed T.A. Naqshband' & Ors. v. State of Jammu &
6
    Kashmir and Ors. (2003) 9 sec 592: 2003 (1) Suppl. SCR
    114 - relied on.

       Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2
    SCC 637: 2010 (2) SCR 239 - referred to.
F
       2. It is directed 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
G 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. [Para 23] [997-C-D]

H
     SASIDHAR REDDY SURA v. STATE OF ANDHRA                   989
                    PRADESH

                        Case Law Reference:                         A
       2003 (1) Suppl. SCR 114 relied on                 Para 6
       2010 (2) SCR 239             referred to          Para 9

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.                 B
    10836 of 2013.

        From the Judgment & Order dated 17 .07 .2012 of the High
    Court of A.P. at Hyderabad in WP No. 34683 of 2011.
                                   WITH
                                                                        c
1
    Civil Appeal No. 10837 of 2013.

        Mohan Parasaran, ASG, R. Basant, L. Nageswara Rao,
    B. Adinarayana Rao, Basava Prabhu S. Patil, P.P. Rao, Y. Raja
    Gopala Rao, K. Parameshwar, Sudha Gupta, G. Ramakrishna
                                                                  0
    Prasad, Suyodhan Byrapaneni, Mohd, Wasay Khan, Filza
    Moonis, Lawyer's Knit & Co., K. Swami, Nikhil Swami, Prabha
    Swami, Mahalakshmi Pavani, Akshat Kulshreshta, S. Manish,
    Meghna, Anshuman Ashok, P.S. Tripathi, Sridhar Potaraju, G.
    Gangmei, Nisha Pandey, Mahalakshmi Balaji & Co., P. Vinay E
    Kumar, Gunnam Venkateswara Rao, G.N. Reddy, Debojit
    Borkakati, Bala Shivudu M., G. Ramakrishna Prasad, Tatini
    Basu, B. Subrahmanya Prasad, Anirudh Sanganeria,
    Venkatakrishna Kunduru, Debjoyti Basu, Dr. K. Lakshmi
     Narasimha, S. Udaya Kumar Sagar, Bina Madhavan,
     Praseena E. Joseph, Shivendra Singh, Sinha Shrey Nikhilesh, F
     Santosh Mishra, K. Parameshwar, Vinay Kumar, C.S.N. Mohan
     Rao, Y. Raja Gopala Rao for the appearing parties.

          The Judgment of the Court was delivered by
                                                                            G
          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 17th July, 2012
                                                                            H
        990     SUPREME COURT REPORTS              [2013] 12 S.C.R.


    A delivered by the High Court of Andhra Pradesh in Writ Petition
      No. 34683 of 2011.
          3. The grievance which had been ventilated by the
     appellant before the High Court was that he had not been
 B appointed to th·e post      of.District and Sessions Judge. In
     pursuance of arfaaverti~ement, dated 19th August, 2010
     published by the High Court of' Andhra Pradesh inviting
     applications for appointmen(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
 C 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
 D 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
E 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 at the time when the
F advertisement had been issued i.e. on 19th 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
G 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
H
  SASIDHAR REDDY SURA v. STATE OF ANDHRA                   991
         PRADESH [ANIL R. DAVE, J.]
completed the age of 35 years for being appointed to the post A
in question as there is no provision in the Andhra Pradesh State
Judicial Service Rules, 2007 (hereinafter referred to as the
'Rules') to tpe 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 B
to the ~onclusion 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 decided not to appoint c
 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 h~ded D
 by Justice Shelly 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 E
  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.                                                       F

      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.             G
  He had drawn our attention to para 8 of the said judgment which
  reads as under:

       "... The conditions of service of members of any service
      for that matter is governed by statutory rules and orders,    H
      lawfully made in the absence of rules to cover the area
    992        SUPREME COURT REPORTS                 [2013] 12 S.C.R.

A          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
B         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
c         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 .... "
D      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
E 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 appointment to the appellant. He had
F 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
G
        said post should be (a) an advoc;ate 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
H
 SASIDHAR REDDY SURA v. STATE OF ANDHRA                     993
        PRADESH [ANIL R. DAVE, J.]

    and Backward Classes) and (c) of sound health and active        A
    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
                                                                    8
age on the 1st day of August, 2010 and the appellant had not
completed 45 years of age as on 1st 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           C
was erroneous and thus, the view expressed by the High Court
cannot be accepted.

     9. He ha<;! 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 &          D
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       E
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       F
     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    G
     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    H
     994      SUPREME COURT REPORTS                  [2013) 12 S.C.R.


A 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.

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
C 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
D 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
E candidates also made similar submissions.
         15. We have heard the learned couns.el at length and have
    also perused the judgments referred to by tl:ie learned counsel
    and the impugned judgment.                 ·

F        16. Upon hearing the learned counsel and looking at the
    relevant provisions governing appointment to the post of a
    District and Sessions Judge (Entry Level) in the A.P: Judicial
    Service, we are not persuaded to agree with the view
    expressed by the High Court.
G
         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
H       category of District Judges by direct recruitment shall be :
 SASIDHAR REDDY SURA v. STATE OF ANDHRA                      995
        PRADESH [ANIL R. DAVE, J.]

     a.    An advocate of not less than seven years standing          A
           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
                                                                      B
           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.
                                                                      c
            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      D
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 applications for such an appointment is
published in the Andhra Pradesh Gazette. The said clause              E
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.                                                         F

    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            G
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                  H.
    996      SUPREME COU~T REPORTS               (2013) 12 S.C.R.

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
B provisions incorporated in the report of the Commission into
  the Rules. The Rules are statutory and framed under the
  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
c 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
0
  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
E 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.
F
        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
G recommendations of the Commission 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
H undue weightage to the recommendations made by the
  SASIDHAR REDDY SURA v. STATE OF ANDHRA                        997
         PRADESH [ANIL R. DAVE, J.]

Commission, especially when the Rules do not provide for any            A
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.
                                                                        B
      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           C
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         D
 as well as the State shall 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.                                                      E

C.A.No. 10837/2013

(Arising out of SLP<Cl No.24313/2012)

     1. Leave granted.                                                  F
     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             G
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            H
    998       SUPREME COURT REPORTS               [2013] 12 S.C.R.


A 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
B marks had been done away with by virtue of an amendment
  made to 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.
c        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.

0       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
E 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
F 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, however, she shall not be
  paid salary for the period during which she has not worked as
G 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.

H B.B.B.                                     Appeals disposed of.