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  17th 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 19th 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  

2

Page 3

at  the time when the 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  

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  

3

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:

4

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  

5

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 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 was erroneous and thus, the view  

expressed by the High Court cannot be accepted.

6

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.

7

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  

8

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  

13

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,  

14

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

15