THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION Nos.8544, 23245 and 27576 of 2010 COMMON ORDER:- (Per the Hon’ble Sri Justice N. Ravi Shankar) Whether the relaxation of upper age limit by four years i.e. from 34 to 38 years granted in G.O.Ms.No.772 General Administration (Ser.A) Department dated 09.10.2007, and by five years i.e. from 34 years to 39 years granted in G.O.Ms.No.709 General Administration (Ser.A) Department dated 25.11.2008 granted by the State Government for direct recruitment to certain posts specified in the said Government orders ennure for the benefit of the petitioners in these three writ petitions for recruitment to the posts in the Andhra Pradesh Judicial Ministerial Service Rules 2003 (for short APJMS Rules) is the main question raised in all these three writ petitions. Hence they have been taken up for disposal by this common order. Certain other questions are also raised in WP No.27576 of 2010 and they will be separately dealt with. 2. When these three writ petitions came up for admission the learned Standing Counsel for the High Court took notice. The District Judge, Adilabad who is the second respondent in WP No.27576 of 2010 and WP No.8544 of 2010 filed counters opposing the said writ petitions. However no counter was filed in the third writ petition i.e. WP No.23245 of 2010 pertaining to the Warangal District. To answer the above question the facts necessary which led to the filing of these three writ petitions should be noted. One Sri R.Rajender who is working as an Office Subordinate/Attender on contract basis in the Court of the III Additional District Judge, Asifabad (a Fast Track Court) is the petitioner in WP No.27576 of 2010 and WP No.8544 of 2010. These two writ petitions pertain to recruitment for the posts of Office Subordinates/Attenders in the unit of the District Judge, Adilabad. These posts are included in APJMS Rules by G.O.Ms.No.50 Law (LA & J-Home-Courts.D) Department dated 23.04.2009. 3. The petitioner in WP No.23245 of 2010 is one Ms P.Chaitanya and it pertains to direct recruitment to the posts of Junior Assistants, Typists, Examiners, Office Subordinates, Process Servers and Field Assistants in the unit of the District Judge, Warangal. All the said posts are posts in the Courts subordinate to this Court and are within the purview of APJMS Rules, over which the Andhra Pradesh Administrative Tribunal will not have jurisdiction vide Section 2(c) of the Administrative Tribunals Act 1985 which says that the said Act has no application to any officer or servant of the Supreme Court or of any High Court or Courts subordinate thereto. 4. The appointing authority for all the posts under APJMS Rules is the District Judge of the concerned unit. Rule 9 of the APJMS Rules which speaks about age qualification for direct recruitment reads as follows. “No person shall be eligible for appointment by direct recruitment if he has completed 33 years of age on the first day of July of the year in which the notification for selection is made or such age as prescribed by the Government of Andhra Pradesh from time to time.” 5. It is thus clear from the above rule that a candidate to be eligible for direct recruitment should not have completed 33 years of age on the first day of July of the year in which the notification for selection is made. The above rule further stipulates that this age qualification may vary as prescribed by the Government from time to time and this prescription is made by the Government in the Andhra Pradesh State and Subordinate Services Rules, 1996 (for short referred to as General Rules) which are applicable to the APJMS Rules by reason of Rule 37 thereof. Rule 12 of the General Rules speaks of qualification for direct recruitment in all services to which they are applicable. Rule 12(1)(a)(v) as it stood says originally says that one should not have completed 33 years of age for direct recruitment as on the first day of July of the year in which the notification for the relevant posts is given. It should now be mentioned here that by G.O.Ms.No.759 General Administration (SER-D) Department dated 06.10.2007 the Government have amended Rule 12 of the General Rules and through that amendment Government have increased the age qualification from 33 years to 34 years without changing the other requirements. Since then for the recruitment for posts in APJMS Rules also the District Judges are following the said amendment. This aspect is mentioned as this is made a strong ground by the learned counsel for petitioners for application of the two GOs mentioned in the above question to the petitioners and this will be dealt with in greater detail infra. 6. While matters stood thus the District Judge, Warangal issued five notifications, four of them dated 02.08.2010 and the fifth one dated 05.08.2010, notifying the posts of Junior Assistants, Typists, Examiners, Office Subordinates and Process Services and Field Assistants. These notifications are the subject matter of WP No.23245 of 2010. Similarly the District Judge, Adilabad issued two notifications, one dated 03.04.2010 and the other dated 15.05.2010, notifying certain posts of Office Subordinate/Attenders. In all the notifications it is stated that the candidates who apply for the said posts should not have completed the age of 34 years as on 01.07.2010. There is also age relaxation for the members of Backward Classes, Scheduled Castes and Scheduled Tribes as stipulated in Rule 22 of the general rules which also applies to APJMS Rules. 7. The plea of the petitioners in WP No.8544 of 2010 and WP No.23245 of 2010 is that the age relaxation of four years (i.e. from 34 to 38 years) granted in G.O.Ms.No.772 dated 09.10.2007 and the age relaxation of five years (i.e. from 34 to 39 years) granted in G.O.Ms.No.709 dated 25.11.2008 must be applied to recruitment under APJMS Rules also and if they are applied they would also become eligible for the posts notified by the District Judge, Warangal and the District Judge, Adilabad. It is obvious that both the petitioners have become age barred to apply for OC category vacancies in all the above notifications. The petitioner R.Rajender in his affidavits themselves filed in support of his two writ petitions has given his age as 41 years and he admittedly belongs to BC-B community and he becomes age barred even after giving him the age relaxation of five years which is given on the 34 years prescribed in the APJMS Rules to the BC candidates. The petitioner Chaitanya in WP No.23245 of 2010 says that her date of birth is 08.06.1976 and it is therefore clear that she will have completed 34 years of age by 01.07.2010 which is the cut off date for age qualification mentioned for OC candidates in the notifications issued by the District Judge, Warangal. It appears that this petitioner belongs to OC category for the simple reason that if she belongs to reserved categories she would become eligible and therefore could not have any grievance. 8. The main contention of Sri D.Linga Rao who argued for the petitioners in these three writ petitions is that Rule 12 of the General Rules regarding age qualifications applies to all departments including judiciary and therefore the High Court and the District Judges are also bound by the same and therefore on that principle G.O.Ms.No.772 dated 09.10.2007 and G.O.Ms.No.709 dated 25.11.2008 must be held to be binding on the High Court and the District Judges and consequently the age relaxation given in the said GOs should be applied to the posts in the Courts also. He pointed out that for recruitment to the posts in APJMS Rules also the High Court has adopted G.O.Ms.No.759 General Administration (SER-D) Department dated 06.10.2007 by which the Government have amended Rule 12 of the General Rules by which the age qualification was increased to 34 years from 33 years and going by the same analogy the above two GOs i.e. G.O.Ms.No.772 dated 09.10.2007 and G.O.Ms.No.709 dated 25.11.2008 should also be adopted by the High Court and the District Judges and grant the age relaxation given in the said GOs. A Division Bench of this Court in the judgment dated 01.02.2010 in WP No.447 of 2010 already rejected this contention. However as Sri D.Linga Rao once again argued this matter at length, we have examined his contention once again, but we regret that we are unable to agree with his contention for the following reasons. 9. Before going further it would be relevant to note G.O.Ms.No.772 and G.O.Ms.No.709 and they read as follows. GOVERNMENT OF ANDHRA PRADESH ABSTRACT Public Services – Direct recruitment – Relaxation of upper age limit by 4 years for the ensuing recruitments through Andhra Pradesh Public Services Commission and other recruiting agencies – Orders – Issued. GENERAL ADMINISTRATION (SER.A) DEPARTMENT G.O.Ms.No.772 Dated : 9.10.2007 Read the following:- 1. From the Principal Secretary to Government, Finance Department D.O. Letter No.4452-A/219/A3/SMPC/2007-1, dated 18.09.2007 addressed to Secretary, Andhra Pradesh Public Service Commission, Hyderabad copy marked to Secretary to Govt., G.A. (Services) Dept. 2. From the Principal Secretary to Government, Finance Department D.O. Letter No.4452-A/219/A3/SMPC/2007-2, dated 18.09.2007 addressed Board, O/o. the Director General of Police, A.P., Hyderabad. 3. From the Principal Secretary to Government, Finance Department D.O. Letter No.4452-A/219/A3/SMPC/2007-3, dated 18.09.2007 addressed to Commissioner of Prohibition & Excise, A.P., Hyderabad. 4. From the Principal Secretary to Government, Finance Department D.O. Letter No.4452-A/219/A3/SMPC/2007-4, dated 18.09.2007 addressed to Principal Chief Conservator of Forests, A.P., Hyderabad. 5. From the Principal Secretary to Government, Finance Department D.O. Letter No.4452-A/219/A3/SMPC/2007-5, dated 18.09.2007 addressed to Principal Secretary to Government, Home Dept., A.P., Secretariat, Hyderabad. ORDER : Government have decided to fill-up certain vacant posts in various categories in different departments as per the requirements. Accordingly, the Andhra Pradesh Public Service Commission and other recruiting agencies have been requested to conduct recruitment vide the references read above. 2. As this direct recruitment is being conducted after a gap of many years, the Government consider it necessary to relax the upper age limit for direct recruitment to enable more unemployed youth to be eligible to compete in the recruitment process. Accordingly, the following Adhoc Rule is issued to raise the upper age limit of 34 years prescribed in rule 12 of the A.P. State & Subordinate Services Rules by 4 years for the recruitments. Notification In exercise of the powers conferred by the proviso to Article 39 of the constitution of India, the Governor of Andhra Pradesh hereby makes the following adhoc rule, namely:- Adhoc Rule Notwithstanding anything contained in the Andhra Pradesh State and Sub-Ordinate Service Rules or in the Special or Adhoc rules for any State Service, the maximum age limit prescribed in the Andhra Pradesh State Sub-Ordinate Service Rules or in the relevant special or adhoc rules for appointment by direct recruitment shall be raised by “four years” i.e., from 34 to 38 years for the purpose of direct recruitment to various categories of posts to be notified by the concerned recruiting agencies as per the D.O. letters read above. Provided that nothing in this rule shall apply for direct recruitment to the posts of uniformed services of Police, Excise, Fire and Forest departments for which physical standards have been prescribed in the State and Subordinate Service Rules or in the relevant special or adhoc rules. (By order and in the name of the Governor of A.P.) J.Harinarayana Chief Secretary to Govt. GOVERNMENT OF ANDHRA PRADESH ABSTRACT PUBLIC SERVICES – Recruitment to State and Subordinate Services – Direct recruitment - Relaxation of upper age limit by 5 years for the ensuing recruitments through the Andhra Pradesh Public Service Commission – Adhoc Rule – Issued. GENERAL ADMINISTRATION (SERVICES-A) DEPARTMENT G.O.Ms.No.709 Dated:25-11-2008 01. From the Principal Secretary to Government, Finance Department DO Lr No.13860-B/737/A3/SMPO/2008, Dt:03-06-2008. 02. From the Principal Secretary to Government, Finance Department, Lr.No:13860-B/737/A3/SMPC/08-3, Dt:27-09-2008. 03. From the Principal Secretary to Government, Finance Department DO Lr.No:22841/1279/A3/SMPC/2007, Dt:10-09-2007. ORDER : In the reference read above, the Finance (SMPC) Department have reported vacancies in various category of posts for direct recruitment through the Andhra Pradesh Public Service Commission. 2. As per Rule 12 of Andhra Pradesh State and Subordinate Service Rules, 1996 the upper age limit for Direct Recruitment is 34 years and age concession is allowed to SC/ST/BC candidates, physically handicapped persons, persons who worked in the armed forces of the Indian Union, NCC, and Inservice State Government employees. 3. Government, decided to raise the above upper age limit by 5 years from 34 years to 39 years for ensuing direct recruitment to various categories of posts notified in the references read above by allowing age concession in favour of SC/ST/BC candidates, physically handicapped persons, persons who worked in the armed forces of the Union, NCC, and persons in regular service of the State Government. 4. Accordingly the following Ad-hoc Rule is issued to raise the upper age limit of 34 years by 5 years for the posts notified in the references read above. The following notification will be published in the Andhra Pradesh Gazette. NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Andhra Pradesh hereby make the following ad-hoc rule, namely: ADHOC RULE Not withstanding anything contained in the Andhra Pradesh State and Subordinate Service Rules or the Special Rules or Ad-hoc rules the maximum age limit prescribed for appointment by direct recruitment to the posts in the State and Subordinate Services to be made by the Andhra Pradesh Public Services Commission to respect of the vacancies notified by the Government in Finance (SMPC) Department vide D O Letters no:22841, dated 10-09-2007 No:13860, Dt: 03-06-2008 and no: 13860, Dt: 27-09-2008 shall be raised by 5 years i.e., from 34 years to 39 years except the posts in Uniform service as specified here in. The age concession in favour of SC/ST/BC candidates NCC and Ex-Servicemen over and above the upper age limit shall also be allowed to accordance with the Rule 12 of Andhra Pradesh State and Subordinate Service Rules. In respect of the posts in uniformed services of public Excise and Fire the maximum age limit shall be raised up to 30 years. (By order and in the name of the Governor of A.P.) P.RAMAKANTH REDDY CHIEF SECRETARY TO GOVERNMENT. A perusal of G.O.Ms.No.772 would show that the age relaxation of four years given therein is meant only for recruitment to certain posts mentioned therein but not uniformly to all posts. It may also be noted that restricting the said GO only to the posts mentioned therein the Government have framed what they call an ad hoc rule giving the age relaxation. Similarly in G.O.Ms.No.709 also the age relaxation of five years from 34 years to 39 years is given by way of an ad hoc rule only for certain posts for which recruitment has been taken by the authorities mentioned therein. 10. Thus it is clear that the Government through the above two GOs have not amended Rule 12 of the General Rules increasing the age qualification as prescribed in each of the above two GOs. To be more specific a reading of the above two GOs would show that in both of them the Government have framed ad hoc rules granting the age relaxation from 34 years prescribed in the Rule 12 of the General Rules by four years and five years only for recruitment for the posts mentioned therein. The reasons for framing such ad hoc rules are also given in the said two GOs and they are that since direct recruitment for the posts mentioned in the said GOs has been taken up after a gap of four or five years, the said age relaxation has been granted. Further the said age relaxations granted in the said GOs have been granted only for recruitment to such posts by the Andhra Pradesh Public Service Commission. 11. It is therefore clear that the age relaxations granted in G.O.Ms.No.772 and G.O.Ms.No.709 are given only for certain posts specified in the said GOs for which recruitment has been undertaken by the Andhra Pradesh Public Service Commission. The said age relaxations are also not extended to posts other than those specified in the said GOs. To repeat, the Government have not amended Rule 12 of the General Rules in which case alone the said age relaxations apply to all posts covered by the General Rules. Thus the age relaxations granted in the above two GOs must be restricted only to those posts covered by the said GOs in respect of which ad hoc rules have been framed granting age relaxation and not to all posts covered by the General Rules. 12. Now recruitment to the posts under APJMS Rules to the posts in the Courts which are subordinate to High Court are made by the District Judges concerned and this recruitment has been going on regularly and there has been no gap. One argument which was advanced on behalf of the petitioners was that the posts of Attneders are governed by Andhra Pradesh Last Grade Service Rules 1992 and not APJMS Rules and therefore the above two GOs can be applied to the posts of Attenders. We have already mentioned supra that posts of Attenders have been included in APJMS Rules by G.O.Ms.No.50 Law (LA & J-Home- Courts.D) Department dated 23.04.2009 and this aspect was already considered in the judgment in WP No.447 of 2010 referred to supra. We are of the opinion that the above reasons plus this distinction that is inasmuch as recruitment to the posts in question is undertaken by District Judges are sufficient to reject the contention of Sri Linga Rao and we accordingly reject it. 13. Sri Linga Rao however in support of his above contention relied upon MALLIKARJUNA RAO vs. STATE OF A.P.[1], H.C.PUTTASWAMY vs. HON’BLE CHIEF JUSTICE OF KARNATAKA[2], and R.C.SOOD vs. HIGH COURT OF RAJASTHAN[3]. These decisions are not relevant to the point and hence they are not considered. 14. Sri Linga Rao then relied upon a decision of the Supreme Court given in PANKAJ GUPTA vs. STATE OF JAMMU AND KASHMIR[4] and another decision of the Supreme Court given in SECRETARY, STATE OF KARNATAKA AND OTHERS vs. UMADEVI AND OTHERS[5]. In PANKAJ GUPTA’s case (4 supra) the Supreme Court was dealing with the plight of certain persons appointed illegally in Government jobs on the basis of the recommendations of the Members of the Legislative Assembly and the Legislative Council of the State of Jammu and Kashmir and they have put in long service. While holding that such persons appointed illegally have no right to claim regularisation or absorption in service, the Supreme Court considering their plight directed that an opportunity may be given to them to apply for the jobs in any regular recruitment that may be taken up later on and that they may be given relaxation in upper age limit considering their length of service. 15. In UMADEVI’s case (5 supra) also it has been held by the Supreme Court that there is no justification for directing regularisation or absorption of those appointed illegally into Government service. Both these decisions are also not relevant to the point. As already mentioned supra a Division Bench of this Court in the judgment dated 01.02.2010 passed in WPNo.447 of 2010 already held that the age relaxation granted in G.O.Ms.No.772 and G.O.Ms.No.709 cannot be extended to recruitment under APJMS Rules. We do not see any reason to differ from that view. Accordingly we hold that the aforesaid two GOs i.e. G.O.Ms.No.772 and G.O.Ms.No.709 cannot ennure for the benefit of petitioners in these writ petitions. 16. That takes us to the separate questions or points raised in WP No.27576 of 2010. The first point raised in this writ petition is that the petitioner Sri R.Rajender therein is working as an Attender in the III Additional District Court, Asifabad (a Fast Track Court) since about ten years having been appointed on contract basis to that post on 23.07.2002 by the District Judge, Adilabad and therefore age relaxation should be given in his favour for that entire period. This plea cannot be accepted. It may be noted that this petitioner was not appointed regularly. He was given a contractual appointment on fixed emoluments under the rules governing contractual appointments and it was being continued from time to time till regular appointments are made. It may also be noted that the Fast Track Court in question itself is a temporary Court and its staff were also sanctioned on a temporary basis and they are not permanent posts. The pleadings of this petitioner himself would show that he was throughout aware that he was appointed only on a contractual basis without any promise of absorbing him in a permanent post. Hence the question of any promissory estoppel also does not arise. In these circumstances the rule laid down in PANKAJ GUPTA’s case (4 supra) and also the rule laid down in UMADEVI’s case (5 supra) cannot be applied to him. 17. The other plea raised by this petitioner R.Rajender is this. The District Judge, Adilabad issued two notifications for the posts of Attenders, the first is dated 03.04.2010 and he notified 45 vacancies in the said notification and the second notification is dated 15.05.2010 and through that notification he notified 3 vacancies of Attenders. The said two notifications thus show that 48 vacancies were notified. However in the counter filed by the District Judge it is stated that 47 vacancies were notified and filled up. The plea of the petitioner is that out of 48 vacancies only 47 were filled up and 1 vacancy reserved for OC-Ex Servicemen (OC-ESM) has been kept vacant for want of candidate and he should therefore be considered and appointed in that vacancy. 18. It may be noted that in the first notification dated 03.04.2010, 18 OC vacancies were notified and it is seen that roster point no.94 in the category of Attenders was shown as a OC vacancy. However in the second notification dated 15.05.2010 roster point no.94 was notified as a BC-E vacancy. Thus it is clear that the office of the District Court, Adilabad committed a mistake in notifying roster point no.94 twice and it was wrongly notified as a OC vacancy in the first notification and it was corrected as BC-E vacancy in the second notification. This explains as to why 48 vacancies were notified and 47 were filled up. It is clear that only 47 vacancies were available and not 48. As the District Judge as the recruiting authority has always got the power to increase or decrease any vacancies and correct the mistakes, it follows that the District Judge is competent to make the above correction. 19. The further plea of this petitioner is that in the notification dated 03.04.2010 of the District Judge, Adilabad roster point no.37 is shown as a vacancy reserved for OC-ESM. The age relaxation for this OC-ESM vacancy is ten years. In other words any candidate belonging to this vacancy would be eligible if he has not completed 44 years of age as on 01.07.2010. The contention of this petitioner is that he should have been considered for this vacancy as he has already crossed 40 years. In support of this contention he pleaded that in the category of posts of Personal Assistants also one OC-ESM vacancy was notified and since no candidate was available it was filled up by a BC-B candidate and that on the same analogy he should be considered for the Attender post reserved for OC-ESM category. 20. The stand of the District Judge in his counter is that according to Rule 22(2)(c) of the General Rules if no candidate belonging to OC-ESM is available the said vacancy can be filled up by other candidate. He then stated that as no OC-ESM candidate was available he filled up that vacancy at roster point no.37 by a OC candidate after obtaining