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Judgment
K.G. Shankar, J.—I have the benefit and pleasure of reading the judgment of My Lord Honourable Sri Justice V. Eswaraiah. I regret my inability to agree with the detailed and erudite judgment of the Honourable Judge. I have no alternative but to express my separate view through this common order. This batch of writ petitions arise from the orders in the batch of Original Applications (O.As., for short) before the Andhra Pradesh Administrative Tribunal, Hyderabad (the Tribunal, for short) dated 30-9-2011. As these writ petitions arise from the common orders in the O.As., and as they involve common questions of fact and law, these writ petitions are disposed of through this common order.
The fundamental question in these petitions is whether 30-12-2008 shall be computed as the date of notification or 13-4-2009 shall be computed as the date of notification. The result of these writ petitions depends upon the answer to this fundamental question.
The facts:
The uncontroverted facts are:
(a) The petitioners are unemployed. They claim to be fully qualified for appointment as Assistant Motor Vehicle Inspectors.
(b) The Andhra Pradesh Public Service Commission, Hyderabad (the APPSC, for short), which is the 2nd respondent in the writ petitions, issued a notification in Notification No. 45/2008 on 30-12-2008 calling for applications for appointment to the post of the Assistant Motor Vehicle Inspectors. Subsequently, Notification No. 45/2008 was issued on 13-4-2009 by the 2nd respondent calling for applications for appointment as Assistant Motor Vehicle Inspectors.
(c) The petitioners, who were fully qualified, applied for the same. However, the APPSC considered that they were not qualified and did not allow the petitioners to participate in the selection process. Aggrieved by the same, the petitioners laid O.As. before the Tribunal. Through the impugned order, the Tribunal dismissed the O.As. Aggrieved by the same, the petitioners came forward before us with these writ petitions.
I may point out at the outset that initially through 16 writ petitions, 19 writ petitioners have questioned the attitude of the APPSC in not allowing the petitioners to participate in the selection process. After arguments were heard fairly exhaustively, some of the learned counsel for the writ petitioners suggested that they might be informed whether the writ petitioners were provisionally selected or not, so that if the writ petitioners did not qualify in the provisional selection, the very writ petitions could be a futile exercise. We consequently requested Sri G. Vivekanand, learned Standing Counsel for the APPSC, to verify and inform us as to whether any of the writ petitioners would qualify for selection if the objections raised by the APPSC regarding the eligibility of the petitioners is answered in favour of the petitioners. The learned Standing Counsel for the APPSC obtained instructions and reported to us that 8 of the writ petitioners alone would be eligible for appointment as Assistant Motor Vehicle Inspectors in the event the writ petitions are allowed. Be that as it is, as both sides advanced submissions exhaustively, I deem it appropriate to dispose of all the writ petitions on merits.
Notification and Detailed Notification:
The controversial facts, which led to the lis, may briefly be noticed at this stage. The APPSC issued a Notification (more or less a single page Notification) bearing Notification No. 45/2008 on 30-12-2008. The Notification invited applications online through proforma application from 13-4-2009 till 30-4-2009 for the recruitment of the post of Assistant Motor Vehicle Inspectors in Andhra Pradesh Transport Subordinate Services. The Notification (which shall be referred to as ''the Notification'', for short, as contra distinction to Detailed Notification) showed that the advertisement was in respect of 217 vacancies and that the age limit for the post was from 18 years of age to 39 years of age.
The problem arose on account of condition No. (ii) of the qualifications. Qualification No. (ii) under the Notification is that the applicant must hold a Light Motor Vehicle Driving Licence and shall have experience in driving light motor vehicles for a period of not less than 3 years. There is no controversy to this extent. Qualification No. (ii) further requires the applicant to possess "Heavy Transport Vehicle Endorsement". It was provided under qualification No. (ii) that women applicants without Heavy Transport Vehicle Endorsement were eligible subject to the condition that such applicants should acquire Heavy Transport Vehicle Endorsement within 2 years of their joining service in the event they were selected as Assistant Motor Vehicle Inspectors.
The Notification further states that a "Detailed Notification" together with proforma application can be viewed in the Website. Item No. 5 of Nota Bene (referred to as "Important") was that "the Detailed Notification" along with the proforma application would be available in the Website from 13-4-2009. Thus, it is evident that by the date of the Notification on 30-12-2008 neither the proforma application nor the Detailed Notification were available.
On 13-4-2009, the Detailed Notification was posted in the Website. It also bears Notification No. 45/2008 as the Notification bore. While the Notification invited applications for 217 vacancies, the Detailed Notification invited applications for 218 vacancies. In the Notification, the prescribed age was 18 years to 39 years as on 01-7-2008. In the Detailed Notification, the age was 21 years to 39 years as on 01-7-2008.
The Detailed Notification runs to about 9 pages. Admittedly, it was posted on 13-4-2009. However, the Notification bore the same date as 30-12-2008 at the end of the Notification.
Only one aspect may be referred to in the Detailed Notification. The 2nd page of the Detailed Notification contains "NOTE ON IMPORTANT LEGAL PROVISIONS GOVERNING THE RECRUITMENT PROCESS". Point No. 2 of the Note is that the Recruitment will be in terms of G.O.Ms. No. 529, TR & B (Trans. 1) Department, dated 04-6-1999, G.O.Ms. No. 32, TR & B (Ser. IV) Department, dated 22-02-2008, G.O.Ms. No. 213, TR & B (Ser. IV) Department, dated 05-8-2008, G.O.Ms. No. 375, TR & B (Ser. IV) Department, dated 27-12-2008, and reissued in G.O.Ms. No. 71 TR & B (Ser. IV) Department, dated 19-02-2009 and other related G.Os and Rules.
Heavy Transport Vehicle Endorsement:
When the selection process had been taken up, the candidature of the petitioners was not considered on the ground that the petitioners did not possess Heavy Transport Vehicle Endorsement.
It would appear that some of the petitioners indeed held Heavy Transport Vehicle Endorsement but the same expired prior to 30-12-2008. Some of the petitioners did not possess Heavy Transport Vehicle Endorsement at all by 30-12-2008. However, all of them possessed Heavy Transport Vehicle Endorsement by 13-4-2009. Those whose Endorsement had expired renewed their Endorsement before 13-4-2009. Those persons, who did not possess such Endorsement by the date of the Notification, acquired the same before the date of the Detailed Notification.
It is the contention of the learned counsel for the petitioners that in view of the petitioners possessing Heavy Transport Vehicle Endorsement by the date of the Detailed Notification, they were eligible qualification wise.
On the other hand, it is the contention of the learned Government Pleader for Services II that the Notification was dated 30-12-2008 and that the petitioners, who did not possess Heavy Transport Vehicle Endorsement by then, are not eligible.
By the date of the Detailed Notification (dated 13-4-2009), the petitioners were qualified. By the date of the Notification (dated 30-12-2008), the petitioners were not qualified. Therefore, the question came up for consideration whether the Notification was to be considered to be the cut off date or the Detailed Notification was to be considered the cut off date to compute the qualifications of the candidates. The entire controversy is answered on the basis of this question.
Age:
Several counsel representing various petitioners advanced their submissions in support of their contention that 13-4-2009 shall be considered as the date of the Notification for reckoning the age as well as qualification. As against their contention, Sri G. Vivekananda, learned Standing Counsel for APPSC and the learned Government Pleader for Services-II emphatically contend that 30-12-2008 was the date of the Notification and that 13-4-2009 was the commencement date on which applications in response to the Notification could be submitted.
It is the contention of the writ petitioners that there was utter confusion for the APPSC in determining the age and qualification. The Transport Subordinate Service Rules were issued through G.O.Ms. No. 529, Transport, Roads and Buildings (Transport. 1) Department, dated 04-6-2009. These Rules were known as the Andhra Pradesh Transport Subordinate Service Rules, 1999. G.O.Ms. No. 71 Transport, Roads & Buildings (Ser. IV) Department, dated 19-02-2009 superseded these Rules enacted through G.O.Ms. No. 529. The new Rules issued through G.O.Ms. No. 71 are called the Andhra Pradesh Transport Subordinate Services Rules, 2009. Under Rule 7 of 1999 Rules, the age limit for the post of Assistant Motor Vehicle Inspector was 21 years to 28 years, while under Rule 7 of 2009 Rules, the age limit is 21 years to 34 years. Another aspect is that the age shall be reckoned on the first day of July of the year in which the selection is made, according to old and new Rules.
Rule 12 of the Andhra Pradesh State and Subordinate Services Rules, 1996 also deals with the method of computation of the age. Rule 12 (1)(a)(v) contemplates that the age limit shall be from 18 to 34 years and that it shall be computed as on the first day of the year in which the notification is issued. Thus, the general rule envisaged the age limit as between 18 years and 34 years, whereas the Special Rules of 1999 prescribed the age limit as 21 years to 28 years and the Rules now in force, which are 2009 Rules, provide the age limit as 21 years to 34 years.
More important and relevant for the purpose of present conflict is the date for the computation of the age. While the General Rules provide that the age should be computed as on the first day of July of the year in which the Notification is issued, Rule 7 of the 1999 Rules and 2009 Rules envisage that the date should be reckoned as on the first July of the year in which the selection is made.
It is not in dispute that the Special Rules of Andhra Pradesh Transport Subordinate Service Rules, 1999 and 2009, as the case may be, are applicable to the extent they are in conflict with the Andhra Pradesh State and Subordinate Service Rules. It, therefore, is evident that the age and qualification deserve to be reckoned taking the year of selection as the parameter rather than the year of the Notification. That apart, the age qualification shall be computed in terms of the Special Rules and not in terms of the General Rules.
It may be recalled that while State and Subordinate Rules prescribed the minimum age as 18 years, the minimum age limit under the old and new Special Rules is 21 years. The reason is patent. One of the qualifications to apply for the post of Assistant Motor Vehicle Inspector is possessing Light Motor Vehicle Driving Licence for a period of not less than three years. Section 4 of the Motor Vehicles Act, 1988 provides that no one shall be eligible to drive a motor vehicle in any public place unless one crosses 18 years of age and that no person can even hold learner''s or driving licence if one is below the prescribed age limit i.e., 18 years. Section 4(2) of the Motor Vehicles Act further provides that no person can drive a transport vehicle till one completes 20 years of age. Thus, one can possess driving licence to drive light motor vehicles only after one crosses 18 years. As one must have driving licence to drive the light motor vehicle for a minimum period of three years to become eligible to apply for the post of Assistant Motor Vehicle Inspector, the minimum age could be 21 years. Even otherwise, no one below 21 years of age would be able to apply, as requisite qualification cannot be fulfilled by one who is below 21 years of age. Thus, evidently the minimum age limit should be 21 years and consequently, it was so prescribed in the Notification and the Detailed Notification.
In 1999 Rules, the upper age limit was 28 years. In 2009 Rules, the upper age limit was 34 years. However, the Detailed Notification prescribed the age limit as 39 years. It is brought out by the learned counsel for the writ petitioners that the age and qualification in the Notification and the Detailed Notification did not agree with the age limit as provided in this Andhra Pradesh State and Subordinate Services Rules, 1996, the Andhra Pradesh Transport Subordinate Services Rules, 1999 and the Andhra Pradesh Transport Subordinate Services Rules, 2009. However, neither the writ petitioners nor the respondents seek for the quashment of the Notification and for commencement of the selection process afresh. The learned counsel for the petitioners brought out these inconsistencies for a twofold purpose. First, the petitioners claim that the age as provided by the Andhra Pradesh State and Subordinate Service Rules and the age as provided in the Andhra Pradesh Transport Subordinate Services Rules, 1999 (G.O.Ms. No. 529) were given a goby when the lower age limit was provided in the Notification and the Detailed Notification as 21 years and when the upper age limit was prescribed at 39 years in the Detailed Notification.
The learned Government Pleader for Services-II drew our attention to G.O.Ms. No. 709 General Administration (Services-A) Department, dated 25-11-2008. The Government enhanced the age limit by five years, through G.O.Ms. No. 709. It is the contention of the learned Government Pleader that in view of the enhancement of the upper age limit by five years, the Detailed Notification prescribed the upper age limit as 39 years instead of 34 years. It is his contention that in view of G.O.Ms. No. 529 and G.O.Ms. No. 71 read with G.O.Ms. No. 709, the age limit was provided as 21 years to 39 years.
The learned Government Pleader thus pointed out that the age limit would have been from 21 years to 34 years in accordance with 2009 Rules, but for G.O.Ms. No. 709. Added to it, the Detailed Notification itself read G.O.Ms. No. 71. In this context, it is the contention of the learned counsel for the petitioners that as G.O.Ms. No. 71 itself was issued on 19-02-2009, the date of the Notification shall be computed as 13-4-2009 on which date the Detailed Notification was posted in the Website.
G.O.Ms. No. 709 General Administration (Service-A) Department, dated 25.11.2008 is yet another confusing facet in this case. The learned Government Pleader contended that in view of G.O.Ms. No. 709, the upper age limit was fixed at 39 years in the Detailed Notification. Indeed, G.O.Ms. No. 709 was issued more than a month before the Notification (while the Notification was dated 30-12-2008, G.O.Ms. No. 709 was dated 25-11-2008). G.O.Ms. No. 709 consequently is obviously prior to the Detailed Notification. It is the contention of the learned Government Pleader that in view of the enhancement of the upper age limit to 39 years through G.O.Ms. No. 709, the Notification and the Detailed Notification determined the upper age limit as 39 years. Be that as it is, there is no explanation from the learned Government Pleader regarding the lower age limit being 18 in the Notification and being 21 in the Detailed Notification. He had graciously admitted that the minimum age limit could be 21 years as shown in the Detailed Notification and not 18 years as shown in the Notification, in view of the requirement of three years experience in withholding Light Motor Vehicle Driving Licence.
G.O.Ms. No. 709 is an ad hoc Rule, which is applicable not only to Andhra Pradesh State and Subordinate Services Rules, 1996 but also to all Special Rules and Ad hoc Rules. Consequently, the age relaxation or enhancement of upper age limit to 39 years provided by G.O.Ms. No. 709 would be applicable to Andhra Pradesh Transport Subordinate Service Rules, 1999 and Andhra Pradesh Transport Subordinate Services Rules, 2009 as well. The learned Government Pleader had satisfactorily explained the Notification and Detailed Notification prescribing 39 years as the upper age limit. As has been noticed, the conflict between the Notification and the Detailed Notification regarding the minimum age, however, has not been explained, much less satisfactorily by the Government.
Date of Notification: Point 1.
Sri G. Vivekananda, learned Standing Counsel for the APPSC, in his turn contended that the date of the Notification for the purposes of qualification and age limit was 30-12-2008 and that the foundation for the Detailed Notification was the Notification dated 30-12-2008. His claim is that the APPSC merely put the application in the Website on 13-4-2009 and that the Notification was indeed issued on 30-12-2008; he submitted that there cannot be Detailed Notification dated 13-4-2009 sans the Notification dated 30-12-2008.
On the other hand, it is the contention of the learned counsel for the petitioners that the Detailed Notification dated 13-4-2009 is of independent existence de hors the Notification dated 30-12-2008 and not other way round.
The learned counsel for the writ petitioners referred to Rule 3 of the APPSC Rules of Procedure and contended that Notification dated 30-12-2008 did not fulfill the conditions prescribed under Rule 3 and that Notification dated 30-12-2008, therefore, should be reckoned to be an invitation and not a Notification inviting applications.
Rule 3 of the Andhra Pradesh Public Service Commission Rules of Procedure to the extent it is relevant for the purpose of consideration in this case is:
Rule. Where any competitive examination is to be conducted by the Commission for the purpose of direct recruitment to a State or Subordinate Service, the Commission shall -
(i) announce--
(a) the number of vacancies, subject to variation, and invite applications;
(b) the conditions of admission to the examination;
(c) the subjects, schemes or syllabi of the examination;
Thus, Rule 3 of the APPSC Rules of Procedure obligates the APPSC to announce the number of vacancies, the conditions of admission and the subjects and schemes/syllabi of the examination to be conducted for the competitive examination for the purpose of direct recruitment of any post. While so, the Notification specifically mentioned that the break-up of vacancies, scale of pay, age, community, educational qualification and other aspects and the proforma of the application could be viewed in the Website. The Detailed Notification admittedly was posted in the Website on 13-4-2009 only. In other words, till 13-9-2004, the candidates were not aware of the break-up of vacancies. The conditions of the admission to the examination and the subjects as well as scheme/syllabi of the examination were not known to the candidates since the Notification did not furnish these details. It is only the Detailed Notification running to about nine pages contained these details.
The announcement of direct recruitment of posts by the Public Service Commission shall contain the details mentioned in Rule 3(i) of the APPSC Rules of Procedure. If the announcement does not contain these details, it cannot be considered to be a Notification within the meaning of Rule 3 of these Rules.
I have already pointed out that the Notification did not contain these details. These details were available only on 13-4-2009 through the Detailed Notification. Where the Notification did not contain the details as envisaged by Rule 3 of the Rules of Procedure, I am afraid that the Notification cannot be considered to be an announcement within the meaning of the Rules, so much so, the Detailed Notification deserves to be considered, as the Notification within the meaning of Rule-3 of the Rules of Procedure. I may hasten to add that this is only one of the circumstances to hold that the date of the Notification shall be computed to be 13-4-2009, which is the date of Detailed Notification. The overall circumstances should, however, be examined before concluding whether the Detailed Notification dated 03-4-2009 shall be computed to be the Notification within the meaning of the Andhra Pradesh Transport Subordinate Service Rules, 1999 and 2009 and Rule 3 of the Rules of Procedure of the APPSC.
Date of Notification: Point 2.
The leaned counsel for the petitioners submitted that perhaps the APPSC was not ready with the Notification by 30-12-2008, so much so, the APPSC merely announced its intention to notify the vacancies on 13-4-2009. It is also contended by the learned counsel for the petitioners that perhaps for one reason or the other better known to the APPSC, the APPSC decided to advertise the vacancies on 13-4-2009 and gave prior intimation on 30-12-2008 through the Notification that the Notification for the posts of Assistant Motor Vehicle Inspectors would be issued on 13-4-2009. In any event, the fact is that the Notification dated 30-12-2008 did not contain the details contemplated by Rule 3 of the Rules of Procedure, while such details were furnished in the Detailed Notification dated 13-4-2009. It is the contention of various petitioners in this background that the date of the Notification was 13-4-2009 and not 30-12-2008. They contend that the Notification was in fact an intention to notify vacancies of Assistant Motor Vehicle Inspectors and the Detailed Notification was the Notification for the purpose of Andhra Pradesh Transport Subordinate Service Rules. Another circumstance strongly urged by the petitioners is reference of G.O.Ms. No. 71 in the Detailed Notification. The Andhra Pradesh Transport Subordinate Services Rules, 2009 were issued through G.O.Ms. No. 71, dated 19-02-2009. These Rules superseded the Andhra Pradesh Transport Subordinate Service Rules 1999 issued in G.O.Ms. No. 529 on 04-02-1999. As it is the contention of various learned counsel for the petitioners that assuming that the Notification dated 30-12-2008 was the Notification/announcement within the meaning of Rule 3 of the Rules of Procedure, the Notification stood wiped out with the supersession of the Rules under which the Notification was issued.
The learned Government Pleader, on the other hand, contends that the Notification shall be deemed to be under the new Rules issued in G.O.Ms. No. 71 dated 19-02-2009. The learned Government Pleader placed reliance upon the meanings of ''supersession'' and ''repeal'' in Oxford Advanced Learner''s Dictionary. Repeal was defined in Oxford Advanced Learner''s Dictionary (8th edition, page 1293) that a repealed law is no longer valid. He also referred to definition of supersede by the same dictionary (8th edition, page 1553) as to take the place of. On the strength of these meanings as mentioned in the Oxford Advanced Learner''s Dictionary, it is the contention of the learned Government Pleader that as G.O.Ms. No. 71 superseded (specifically so mentioned), 2009 Rules merely take the place of 1999 Rules.
The learned counsel for the petitioners, however, contended that for technical and legal terms like repeal and supersession it is not the general dictionary like Oxford Advanced Learner''s Dictionary that can be searched and that the definition of these words should be looked into in the legal dictionaries. Tomlin in his Law Dictionary defined repeal as a revocation. In his dictionary, P. Ramanatha Ayyar defined repeal as signifying abrogation of one statute by another. He also defined supersession as synonym of repeal and also as annulment and as making the superseded object wide. In other words, what was superseded becomes void from the date of supersession. We would prefer to adopt the meaning as given in the legal dictionary and consider that supersession is annulment or to make void. When G.O.Ms. No. 71 superseded G.O.Ms. No. 529, the Service Rules stood repealed, became void and not mere enforceable. Consequently, the Notification dated 30-12-2008 outlived itself and becomes unenforceable.
If the Detailed Notification is a sequel of the Notification since the Notification refers to Detailed Notification, the Detailed Notification also becomes invalid, so much so, the very selection process undertaken by the APPSC becomes non est. The learned Government Pleader tried to impress upon us that the Notification, the Detailed Notification and the superseded Rules and the present Rules should be read conjointly and should be interpreted constructively so that the very selection process does not become invalid.
It may be noticed that despite the Notification dated 30-12-2008 was issued under the Andhra Pradesh Subordinate Service Rules, 1999 and despite the Rules stood superseded by the Andhra Pradesh Transport Subordinate Services Rules, 2009 in G.O.Ms. No. 71, dated 19-02-2009, the selection process commenced with effect from 13-4-2009 when the Detailed Notification was posted in the Website together with proforma application. More over, the Detailed Notification was issued under the new Rules as can be seen from page-2, clause (2) of the Detailed Notification. I, therefore, consider that there is no need to attempt to interrupt the new Rules together with the old Rules. The Detailed Notification stands independently in accordance with the new Rules. Where the Detailed Notification was issued in terms of the new Rules together with Rule 3 of the Rules of Procedure, the Detailed Notification shall be construed to be the date of the Notification/announcement within the meaning of the Andhra Pradesh Transport Subordinate Services Rules, 2009. The date of Notification is liable to be computed to be 13-4-2009 and not 30-12-2008. This is another circumstance to hold that the date of the Notification was 13-4-2009 and not 30-12-2008.
Prejudice to the Writ Petitioners:
When the learned counsel for the petitioners contended that the change of the Notification caused prejudice to the case of the petitioners, the learned Government Pleader contended that there was no prejudice as the Notification and the Detailed Notification are one and the same in all material aspects. The learned counsel for the petitioners placed reliance upon Collector of Central Excise Vs. New Tobacco Co. Etc. Etc., in support of their contention. In that case, a question came up for consideration as to the date on which a notification issued under the Central Excise and Salt Act became effective arose. The notification was published in the Government''s Gazette but was not circulated to the public. The Supreme Court held that mere printing of the notification in the Gazette is not tantamount to publication and that the effective date of publication would be the date on which the publication was available to public.
The learned Government Pleader tried to distinguish this decision from the facts in the present case. In the present case, the Notification was issued on 30-12-2008. Admittedly, the Notification was widely published in various Newspapers. It is the contention of the learned Government Pleader that where the Notification was widely published, the ratio in Collector of Central Excise (supra) has no application. It may be noticed that the Notification merely declared that a further Notification (viz., Detailed Notification) would be published on 13-4-2009, that the proforma application would be available from the date of the Detailed Notification and that the syllabi, communal rosters and other particulars of the examination would be published in the Detailed Notification.
The particulars mentioned in the Notification are bear minimum. Indeed, the publication contained the educational qualifications, the technical qualifications like possessing driving licence, height, eye vision and chest measurements. It also mentioned the age requirement as on 01-7-2008. The Notification is conspicuously absent regarding the details of the method and manner of the examination, the conditions of admission to the examination, the number of vacancies available for open competition and for the reserved categories and above all, the very proforma of the application. The touchstone to determine whether the Notification can be considered to be publication within the meaning of Rule 3 of the Rules of Procedure is whether one can apply for the post of Assistant Motor Vehicle Inspector on the basis of the Notification. The answer to such an enquiry is an emphatic negative reply. As the very proforma application was not available, the question of anybody applying on the basis of the Notification dated 30-12-2008 does not arise. One can apply only on or after the publication of the Detailed Notification on 13-4-2009, albeit in the Web instead of in the Newspapers. That being the case, one could apply only on or after 13-4-2009.
If the date of the Notification is considered to be 30-12-2008, the age would be worked out under Rule 7 of the Special Rules as on 01-7-2008. If the Notification is considered to be on 13-4-2009, the age should be reckoned as on 01-7-2009. Those people who would not have been eligible as on 30-12-2008 perhaps would become eligible by 13-4-2009 on account of passage of time. Further, those persons who did not possess Heavy Transport Vehicle Endorsement by 30-12-2008 may acquire the same before 13-4-2009 and become qualified to apply. Such persons would be affected by the laconic and cryptic Notification. All the petitioners admittedly did not possess Heavy Transport Vehicle Endorsement by 30-12-2008 but acquired the same before 13-4-2009. If 30-12-2008 is considered to be the date of the Notification, these petitioners would be excluded from competing as they did not possess the requisite technical qualifications. If this is not prejudice, nothing can be considered to be prejudicial. I, therefore, unhesitatingly agree with the contention of the learned counsel for the petitioners that prejudice indeed was caused to the petitioners by the laconic Notification dated 30-12-2008. Added to it, the petitioners were led to confusion by the difference of age between ''18 years and 39 years'' and ''21 years and 39 years'' between the Notification and the Detailed Notification as well as the number of posts available between 217 in the Notification and 218 in the Detailed Notification. I am afraid that the APPSC cannot claim that the Notification dated 30-12-2008 is the Notification indeed and that the Detailed Notification dated 13-4-2009 was a mere addition or corrigendum or amendment. In view of the differences between the Notification and the Detailed Notification, I consider that the Detailed Notification was the Notification within the meaning of Rule 3 of the Rules of Procedure. This indeed is the third circumstance to hold that the Detailed Notification was the Notification within the meaning of Rule 3 of the Rules of Procedure.
Effect of supersession:
The learned counsel for the petitioners placed reliance upon Mohan Raj Vs. Dimbeswari Saikia and Another, . It was observed in that case that the repealing Act should not be construed to have taken away the accrued right of a person. However, no rights accrued to the APPSC through the 1999 Service Rules for those to take precedence over the new Rules.
The petitioners placed reliance upon State of U.P. and Others Vs. Hirendra Pal Singh etc., with reference to repeal. The Supreme Court observed:
It is settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided u/s 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e. pro tanto repeal (vide M/s. Dagi Ram Pindi Lall and another Vs. Trilok Chand Jain and others, Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc., Property Owners'' Association and Others Vs. State of Maharashtra and Others, and Mohan Raj v. Dimbeswari Saikia (2007) 15 SCC 115).
However, it is not primarily a question whether the Detailed Notification was reissued under the repealed or superseded old Rules or under the new Rules. What is more relevant is that the Notification and the Detailed Notification differ in many aspects in the sense the Notification is brief and devoid of material details vis-�-vis the Detailed Notification.
Similarly, the use of "reissued" in the Detailed Notification is equally irrelevant for the purpose of enquiry into the present questions. Whether G.O.Ms. No. 71 is a reissue of the earlier G.O.Ms. No. 529 or is an altogether new Rules, once G.O.Ms. No. 71 superseded G.O.Ms. No. 529, the new Rules come into force.
The learned counsel for the APPSC contended that as the Notification prescribed 30-12-2008 as the cut-off date, it shall be construed as the cut-off date. This contention is wholly unacceptable. It was observed by the Supreme Court in State of Uttar Pradesh Vs. Vijay Kumar Misra,
The position is fairly well settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement, is not eligible to be considered for such post. It is relevant to note here that in the rules or in the advertisement no power was vested in any authority to make any relaxation relating to the prescribed qualifications for the post.
The question of cut-off date as 30-12-2008 arises only if the Notification is considered to be the date of the publication of the Notification. I have given reasons why the date of Detailed Notification shall be considered the date of the publication (of the Notification). Therefore, the cut-off date propounded by the learned counsel for the APPSC is not correct.
In Bhupinderpal Singh and Others Vs. State of Punjab and Others, it was observed:
Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, A.P. Public Service Commission v. B. Sarat Chandra, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, Rekha Chaturvedi v. University of Rajasthan, M.V. Nair (Dr) v. Union of India and U.P. Public Service Commission U.P., Allahabad v. Alpana the High Court has held (i) that the cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with.
I, therefore, consider that the date of the Notification for the post of Assistant Motor Vehicle Inspector through Notification No. 45 shall be construed as 13-4-2009.
I do not wish to go into the individual facts of each of the cases. It is the case of the petitioners that they would all be eligible if 13-4-2009 is the date of the Notification. It is for the APPSC to examine whether the petitioners are qualified or otherwise computing 13-4-2009 as the date of the Notification. If they are qualified, the APPSC shall have to call them for interview and take appropriate steps to continue the selection process so far as the petitioners are concerned. The APPSC should indeed at liberty not to call the petitioners for interview if they are not qualified.
The point urged by the learned counsel is a single point, viz., the question of the date of the Notification. They claimed that the date of the Notification was 13-4-2009 for all purposes. For various reasons mentioned, I agree with this claim of the petitioners. What would follow is a necessary consequence.
Question of Pleading:
Inter alia, the learned Government Pleader raised a contention that the petitioners did not raise the contention before the Tribunal that the date of the Detailed Notification was the date of the publication of the Notification and that they are therefore restrained from raising such a plea before us.
The learned Government Pleader is not correct in contending that the petitioners did not contend before the Tribunal that the publication of the Notification shall be considered to be 13-4-2009 on which date the Detailed Notification was issued. In O.A. No. 6598 of 2010 before the Tribunal paragraph 6(g) contains an averment that the selection process was initiated by inviting applications online with effect from 13-4-2009. Similar, if not identical, plea was raised by the petitioners in their respective applications before the Tribunal. Consequently, it is not as though the petitioners did not raise the plea before the Tribunal that the date of the Notification shall be reckoned as 13-4-2009.
Relevant Dates:
G.O.Ms. No. 529, TRANSPORT, ROADS AND BUILDINGS (TRANSPORT. I) DEPARTMENT, is dated 04-6-1999. G.O.Ms. No. 709, GENERAL ADMINISTRATION (SERVICES-A) DEPARTMENT, was issued on 25-11-2008. On 30-12-2008 the Notification was issued calling for applications of 217 posts of Assistant Motor Vehicle Inspectors. G.O.Ms. No. 71, TRANSPORT, ROADS & BUILDINGS (SER-IV) DEPARTMENT, superseding G.O.Ms. No. 529 was issued on 19-02-2009. The second notification described as the Detailed Notification was issued on 13-4-2009. The last date for submitting filled applications was 30-4-2009. After scrutiny, some of the applications were rejected on 05-10-2009. The rest of the candidates were issued with the hall-tickets. Written examination was held on 14-11-2009 for 300 marks (interview was allotted a maximum of 30 marks). The results of the written examination were announced on 13-01-2010. Those candidates who were qualified in the written examination were directed to produce the originals for verification. After verification of the originals, the petitioners who were qualified in the written examination were not directed to appear for medical examination on the ground that the petitioners did not possess Heavy Transport Vehicle Endorsement by 30-12-2008.
As pointed out, if 30-12-2008 is date of the Notification, none of the petitioners would qualify as no one of them had Heavy Transport Vehicle Endorsement by that date. On the other hand, if 13-4-2009 or 30-4-2009 (last date of the applications) is considered to be the date of the Notification, all the petitioners would fulfill the condition of possessing Heavy Transport Vehicle Endorsement. The controversy consequently is only regarding the date of the Notification.
Conclusion:
For various reasons mentioned, I consider that the date of the Detailed Notification, i.e. 13-4-2009 shall be considered to be the date of the publication of the Notification. Consequently, the cut off date to possess the qualifications by the applicants is 13-4-2009. They should be within the age limit by 01-7-2009. It is the case of the petitioners that all the petitioners qualified with reference to age as well as with reference to the qualifications if 13-4-2009 is reckoned as the date of the publication of the Notification.
However, I would only declare the date of the publication of the Notification as 13-4-2009. It is for the APPSC to conduct the arithmetical examination and determine whether the petitioners possessed Heavy Transport Vehicle Endorsement by the date of the Notification (i.e. by 13-4-2009). In the event any or some of the petitioners satisfy this test of possessing Heavy Transport Vehicle Endorsement by 13-4-2009, they shall be called for interview, subject to their falling within the Zone of consideration, having passed the examination. I consider that the order of the Tribunal that the date of the Notification was 30-12-2008 is liable to be set aside and is accordingly set aside. The writ petitions are disposed of accordingly. In view of disposal of the writ petitions, the miscellaneous petitions pending in the writ petitions, if any, shall also stand disposed of. No costs.