Case: High Court of Delhi Vs. Devina Sharma

the learned senior counsel for the petitioner to inform the respondents through mobile phone or e-mail to submit their applications within the time limit prescribed by the High Court i.e. 12.03.2022, which shall, however, remain subject to the outcome of these petitions. Learned senior counsel is further directed to inform the counsel for the respondents about the instant order also. List these matters on 14.03.2022. 12. Following the interim order of this Court, the petitioners before the High Court have appeared through learned counsel. In addition, this Court is also seized of a number of intervention applications by persons who are not before the High Court, but claim the benefit of the directions contained in the interim orders dated 11 March 2022. 13. We have heard Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi. On behalf of the respondents and the intervenors, we have heard Mr Devadatt Kamat and Mr Amarjit Singh Chandhiok, learned senior counsel. The intervenors have been represented in these proceedings by Mr Sidharth Luthra, Ms Anitha Shenoy and Mr Dama Seshadri Naidu, learned senior counsel and Mr Aditya Singh, Mr Amarjit Singh Chandhiok, Mr Ranjan Nikhil Dharnidhar and Mr Deepkaran Dalal, learned counsel. Mr Anuj Sharma, one of the intervenors has also appeared in-person. 14. We would deal with the issues pertaining to DJS and DHJS separately. 15. In order to enable the Court to render a full and complete adjudication of the proceedings, the writ petitions (WP (C) No 3914 of 2022 & WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/2022) before the High Court under Article 226 of the Constitution stand transferred to this Court. We have had the benefit of the submissions urged on both the sides. 16. At the outset, Mr A D N Rao, learned senior counsel appearing on behalf of the High Court of Delhi has stated that the High Court did not conduct the examination which was scheduled to be held in 2020 and in 2021 for DJS. The examination for 2020 could not be held for procedural reasons since the process for the earlier recruitment year, 2019, had not been completed. As regards the examination for 2021, it has been stated by the learned senior counsel that the examination was not held due to the onset of the Covid -19 pandemic. In this backdrop, learned senior counsel submitted that candidates who would otherwise qualify in terms of the upper age limit of 32 years if the exams were held in 2020 and 2021, would now become age barred since the examination is being held pursuant to the notification which was issued on 23 February 2022. 17. Having regard to the above situation, it has been submitted by Mr A D N Rao that this Court may, particularly having regard to the interim order dated 11 March 2022, grant the same benefit to all candidates, who would have qualified for the examination, had the examination been conducted in 2020 and 2021 on the basis of the rules as they then stood. In order to effectuate this, it has been submitted on behalf of the High Court of Delhi that the last date for the acceptance of applications may be suitably postponed by this Court, with the consequence that the dates for the examination may be rescheduled. The High Court has stated that if this Court were to accept the suggestion, a communication would be uploaded on the website of the High Court for the intimation of all prospective applicants so that candidates who would have been eligible during the recruitment years 2020 and 2021 may be considered for the ensuing process as a one-on time measure. 18. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service Commission (2008) 17 SCC 703 . The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the Covid-19 pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned senior counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations. 19. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service Commission (2008) 17 SCC 703 . The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the Covid-19 pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned senior counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations.19. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition.25. The recommendations of the Shetty Commission were initially followed by an order of a three-Judge Bench of this Court in All India Judges Association vs Union of India (2002) 4 SCC 274 . By the order of this Court, the States and the Union Territories to whom a copy of the report had been submitted were directed to submit their responses to the Union of India expeditiously. Eventually, the report of the Shetty Commission resulted in the judgment of a three-Judge Bench of this Court in All India Judges Association vs Union of India (2002) 4 SCC 247 . The rules of several High Courts provide that for recruitment to the Higher Judicial Service, the candidate should be of a minimum age of 35, with a maximum age limit of 45 years. For instance, the rules pertaining to the UP Higher Judicial Service were noticed in a decision of a two-Judge Bench of this Court in Hirandra Kumar vs High Court of Judicature at Allahabad (2020) 17 SCC 401 (Hirandra Kumar). The prescription of a rule providing for a minimum age requirement or maximum age for entry into service is essentially a matter of policy. After noticing the earlier precedents on the subject, this Court in Hirandra Kumar (supra) observed that the determination of cut-offs lies in the realm of policy.26. The submission of the appellants, to the effect that the prescription of a minimum age would be contrary to the constitutional provision contained in Article 233 of the Constitution, cannot be accepted. Article 233(2) of the Constitution stipulates that a person not already in the service of the Union or of a State shall only be eligible to be appointed a District Judge if he has been, for not less than 7 years, an advocate or a pleader and is recommended by the High Court for appointment. Clause (1) of Article 233 stipulates that appointments of persons, posting and promotion of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to the State. Article 235 entrusts to the High Court control over the district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service to the State and holding any post inferior to the post of District Judge. The Constitution has prescribed the requirement to the effect that a person shall be eligible for appointment as a District Judge only if he has been an advocate or a pleader for at least seven years. What this means is that a person who has not fulfilled the seven year norm is not eligible. The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment. The silences of the Constitution have to be and are supplemented by those entrusted with the duty to apply its provisions. The Constitution being silent in regard to the prescription of a minimum age, the High Courts in the exercise of their rule making authority are entitled to prescribe such a requirement. Direct recruitment to the Higher Judicial Service is intended to be from members of the Bar who have sufficient experience. The post of a District Judge is at a senior level in the cadre. Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this. Except for a short period when the requirement of a minimum age of thirty- five was deleted, the Delhi High Court has followed the norm.27. In the circumstances, we are of the view that there is no merit in the submission which has been urged on behalf of the petitioners before the High Court and the intervenors who have not fulfilled the age requirement of 35 years. Though for a short period of about a year, the High Court had deleted the requirement of a minimum age of 35 years for entry into the Higher Judicial Service, the High Court has set right the rule so as to bring it into conformity with the recommendations of the Shetty Commission. The deletion of the minimum age requirement of 35 years in 2019 may have been guided by the need to attract a larger pool of applicants to DHJS. But the reinstatement of a minimum age requirement of 35 years is a matter of policy. This conforms to the recommendation of the Shetty Commission. Hence, there is no valid basis for this court to hold that the requirement that a candidate for the DHJS should be at least thirty-five years of age is invalid. We do not find any merit in the challenge which has been urged on behalf of the appellants to that extent.28. During the course of the hearing, this Court has been apprised of the fact that several applicants for the higher judicial service examination would have qualified in terms of the upper age limit of 45 years in 2020 or, as the case may be, 2021. As a matter of fact, Mr A D N Rao indicates that he has instructions to the effect that some of those candidates may already have or would be in the process of moving petitions before the High Court. The reasons which have weighed with this Court in allowing the High Court, as a one-time measure, to permit candidates for the DJS examination who had qualified in terms of the upper age limit of 32 years during the recruitment years 2020 and 2021, should on a parity of reasoning be extended to candidates for the DHJS examination who would have qualified in terms of the upper age limit of 45 years during the recruitment years 2020 and 2021 during which no examinations could take place for the reasons which have been noticed earlier.