IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1458 of 2010 DINESH MISHRA S/O LATE ADYA PRASAD MISHRA R/O VILL- NARAIPUR, P.O. NARAIPUR, P.S. BAGHA, DISTT. WEST CHAMPARAN … Petitioner Versus 1. THE STATE OF BIHAR 2. THE CHAIRMAN BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHAR LAL NEHRU MARG, BAILEY ROAD, PATNA 800001 3. JOINT SECRETARY CUM SPECIAL EXECUTIVE OFFICER CUM EXAMINATION CONTROLLER BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHAR LAL NEHRU MARG, BAILEY ROAD, PATNA 800001 4. ASSISTANT SECRETARY BIHAR PUBLIC SERVICE COMMISSION, 15, JAWAHAR LAL NEHRU MARG, BAILEY ROAD, PATNA 800001 … Respondents. ----------- 2. 28.1.2010 Heard counsel for the parties. By this writ application the petitioner has prayed for the following reliefs: “ This is an application for issuance of writ in the nature of certiorari for quashing that letter as contained in Memo No. 2779 B.P.S.C. (Bihar Public Service Commission) Patna dated 19.12.2009 (Annexure 5) received on 30.12.2009 (Annexure 6) issued under the signature of the respondent 2 no.3, whereby the candidature of the petitioner for appearing on the 27th Bihar Judicial Service Competitive Examination has been rejected on the ground that his age is more than 35 years as on 1.8.2008, and further to direct the concerned respondent authority hold Special Preliminary Test (P.T.) for the petitioner, whose candidature has been wrongly rejected although the petitioner is entitled for 10 years age relaxation as per Government resolution as contained in Memo No. 62, dated 5.1.2007 (Annexure 7).” Counsel for the petitioner had submitted that even though the advertisement in question had prescribed the maximum age for a candidate seeking appointment in the Bihar Judicial Service to be 35 years, the petitioner on account of 3 being a disabled person was entitled for relaxation of age in terms of the circular of the State Government dated 5.1.2007, wherein it was provided that there would be relaxation of age of maximum up to the period of 10 years in any selection test through open competition. Counsel, therefore, has assailed the impugned order dated 19.12.2009 passed by the Joint Secretary cum Officer on Special duty of the Bihar Public Service Commission wherein the candidature of the writ petitioner was rejected on the ground of his being above 35 years on 1.8.2008. Counsel for the Commission, however, has submitted that the petitioner was bound by the terms of the advertisement and that there being no provision for relaxation 4 either in the advertisement or in the Bihar Judicial Service Recruitment Rules, the petitioner could not have claimed such relaxation of age as a matter of right on the basis of circular of the State Government dated 5.1.2007. In the opinion of this Court the stand taken by the counsel for the B.P.S.C. seems to be correct. In the advertisement which was issued by the Bihar Public Service Commission it was clearly mentioned that the appointment was being made in terms of the Bihar Judicial Services (Recruitment) Rules, 1955. The qualification of age was also clearly laid down in the advertisement in the following terms:- ^^mez lhek& mEehnokj dh mez fnukad 01-08-2008 dks 35 o"kZ ls de ,oa 22 o"kZ ls vf/kd gksuh pkfg,A vuqlwfpr tkfr ;k vuqlwfpr tutkfr ds mEehnokj dh mez mDr frfFk dks 40 o"kZ ls de vkSj 22 o"kZ ls vf/kd gksuh pkfg,A** 5 It is not in doubt that the aforementioned requirement of eligibility condition of age is in conformity with the provisions made in the Bihar Judicial Services (Recruitment) Rules, 1955 and therefore, it would be difficult for this Court to accept the submission of the learned counsel for the petitioner that the same could be deemed to have been amended in terms of the circular of the State Government dated 5.1.2007 making certain provisions for admission/ appointment/ promotion for disabled person in the Government service. It is well settled that an executive instruction, which the aforesaid circular dated 5.1.2007 is, cannot supplant the statutory rules framed under proviso to Article 309 of the Constitution and it is only in the 6 absence of statutory rules that administrative instructions can operate for appointment or promotion. Reference in this connection may be made to the celebrated judgment of the Apex Court in the case of Sant Ram Sharma Vs. State of Rajasthan reported in AIR 1967 S.C. 1910. The appointment in Bihar Judicial Services is made by the State Government in consultation with the High Court and the statutory rules fixing the mode and manner of recruitment including the basic eligibility conditions of age, qualification, etc. has been framed for that very purpose which cannot be overreached or relaxed in terms of any Government circular. Admittedly the petitioner had exceeded the age of 35 years as on 1.8.2008 and therefore, was disqualified in terms 7 of the advertisement and the Rules. The submission of the learned counsel for the petitioner that in the advertisement there was a provision that the disabled candidates could also apply along with the certificate would never mean that any relaxation of age for the disabled candidates was also contemplated as would be self evident from the following portion of the same advertisement:- ^^fodykaxrk dk nkok djus dh fLFkfr esa fu%'kDrrk ¼fodykaxrk½ izek.k i= tkjh djus gsrq dsUnz ljdkj vFkok jkT; ljdkj }kjk fof/kor :i ls xfBr esfMdy cksMZ }kjk tkjh izek.k i= dh vfHkizekf.kr izfr layXu dh tk,A** In the advertisement only relaxation in age was for the candidates of Scheduled Castes and Scheduled Tribes and for no other category. It has to be noted that though similar certificates were to be submitted by the candidates of other backward category (OBC), for them also there 8 was no relaxation in age and as such, the plea of the petitioner with regard to his being not disqualified on account of exceeding the age limit of 35 years as on 1.8.2008 merely because he was a disabled person must be and is hereby rejected. Consequently, there is no merit in this application and the same is hereby dismissed. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/