HIGH COURT OF DELHI versus DEVINA SHARMA
[2022] 2 S.C.R. 513, Supreme Court of India, 2022
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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HIGH COURT OF DELHI
v.
DEVINA SHARMA
(Civil Appeal No 2016 of 2022)
MARCH 14, 2022
[DR. DHANANJAYA Y CHANDRACHUD, A. S. BOPANNA
AND HIMA KOHLI, JJ.]
Judiciary: Upper age limit of 32 years appearing for Delhi
judicial Service (DJS) examination and minimum age requirement
of 35 years for appearing for the Delhi Higher Judicial Service
(DHJS) examination – Validity of, challenged – Held: In regard to
the DJS examination 2022 – The High Court conducted the last
examination for recruitment to the DJS in 2019 – No examination
was held in 2020 for institutional reasons and in 2021 due to the
onset of the Covid-19 pandemic – Suggestions of the High Court
were accepted that candidates who would have fulfilled the upper
age limit of 32 years for years 2020 and 2021, would be eligible to
participate in the examination for the ensuing year 2022 – Hence,
the last date of receipt of applications forms were extended and
new date of examination were announced – In regard to DHJS
examination – Clause (1) of Art.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 – 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 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 – 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
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problems and confront challenges to liberty and justice – The
requirement that a candidate should be at least 35 years of age is
intended to sub-serve this – Hence, there is no valid basis to hold
that the requirement that a candidate for the DHJS should be at
least 35 years of age is invalid – On a parity of reasoning given in
regard to DJS examination, permission given to candidates to appear
in 2022 examination who would have qualified in terms of upper
age limit of 45 years during the recruitment years 2020 and 2021
during which no examinations were held.
Partly allowing the appeals, the Court
HELD: 1.1 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. 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 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. [Para 18][522-G-H; 523-A-D]
1.2 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, this Court observed 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
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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. In order to facilitate
this exercise, the suggestion of the High Court that the last date
for the receipt of application forms shall be extended to 3 April
2022 and the examination shall be held on 24 April 2022 is
accepted. This court directed that no impediment shall be caused
in the conduct of the examination and no court shall issue any
order of stay at variance with or contrary to the above directions
of this Court. [Para 19][523-D-H]
2. In regard to the DHJS examination, 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
HIGH COURT OF DELHI v. DEVINA SHARMA
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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. 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 to hold that the requirement that a candidate
for the DHJS should be at least thirty-five years of age is invalid.
[Paras 26, 27][525-F-H; 526-A-F, H; 527-A-B]
Malik Mazhar Sultan (3) v. Uttar Pradesh Public
Service Commission (2008) 17 SCC 703; All India
Judges Association v. Union of India (2002) 4 SCC
274; All India Judges Association v. Union of India
(2002) 4 SCC 247 : [2002] 2 SCR 712; Hirandra
Kumar v. High Court of Judicature at Allahabad (2020)
17 SCC 401 : [2019] 2 SCR 608 – referred to.
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Case Law Reference
(2008) 17 SCC 703
referred to
Para 18
(2002) 4 SCC 274
referred to
Para 25
[2002] 2 SCR 712
referred to
Para 25
[2019] 2 SCR 608
referred to
Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2016
Of 2022.
From the Judgment and Order dated 08.03.2022 of the High Court
of Delhi at New Delhi in W.P. (C) No.3914 of 2022.
With
Civil Appeal Nos. 2017-2020 of 2022.
A. D. N. Rao, Sr. Adv., Gautam Narayan, Advs. for the Appellant.
Devadatt Kamat, Ms. Amarjit Singh Chandhiok, Ms. Anitha
Shenoy, Dama Seshadri Naidu, Sr. Advs., Rajesh Inamdar, Pai Amit,
Ms. Pankhuri Bhardwaj, Ms. Ripul Swati, Ranjan Nikhil Dharnidhar,
Karan Dalal, Suryavir, Aditya Kapoor, Ms. Manika Goswamy, Ms.
Medha Tondon, Deepkaran Dalal, Vivek Singh, Namit Saxena, Manish
Rohilla, Advs. for the Respondent.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted.
2. These appeals arise from orders of a Division Bench of the
High Court of Delhi dated 4 March 2022 and 8 March 2022. The petitions
before the High Court under Article 226 of the Constitution have raised
issues pertaining to the validity of:
(i)
The upper age limit of 32 years for appearing for the Delhi
Judicial Service1 examination; and
(ii)
The minimum age requirement of 35 years for appearing
for the Delhi Higher Judicial Service2 examination.
HIGH COURT OF DELHI v. DEVINA SHARMA
1 “DJS”
2 “DHJS”
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3. The High Court of Delhi issued notifications for conducting the
examinations for DJS and DHJS on 23 February 2022. For the DJS, the
last date for submission of forms is 20 March 2022 and the examination
is scheduled to take place on 27 March 2022. For DHJS, the last date
for submission of forms was 12 March 2022 while the date of the
examination is 20 March 2022.
4. The bone of contention pertains to Rule 14(c) of the Delhi
Judicial Service Rules 1970. Un-amended Rule 14(c) stipulated that a
candidate shall be eligible to appear at the examination if he is not more
than 32 years of age on the 1st day of January following the date of
commencement of the examination. The above rule was amended on 11
February 2022 so as to stipulate that a candidate shall be eligible to
appear at the examination if he is not more than 32 years of age on the
1st day of January of the year in which the applications for appointment
are invited. The High Court of Delhi conducted the last examination for
recruitment to the DJS in 2019. It is common ground that no examination
was held in 2020 for institutional reasons and in 2021 due to the onset of
the Covid-19 pandemic.
5. The grievance of the petitioners before the High Court is that
candidates who would have qualified in terms of the upper age limit of
32 years for DJS, as stipulated in Rule 14(c), would now cease to be
eligible by virtue of the fact that the examination is being held
in March
2022. In terms of amended Rule 14(c) they would have crossed the age
of 32 years on the 1st day of January of the year in which the applications
for appointment are invited. In other words, it has been urged that if the
High Court had conducted the examination on schedule in 2020 and
2021, such candidates would have qualified for the examination since
they were within the age limit of 32 years for the relevant year.
6 . When the petition was moved before the High Court, the
Division Bench by its interim order dated 8 march 2022 directed that the
date for receiving applications shall be rescheduled to a date after the
next date of hearing and the date of holding the examination shall also be
postponed. The proceedings were directed to be listed on 7 April 2022
before the same Bench which was seized of an earlier writ petition, Writ
Petition (Civil) No 3636 of 2022 after obtaining the orders of the Chief
Justice. Effectively therefore, by the interim order of the High Court,
the examination for DJS which was scheduled to take place on 27 March
2022 would stand postponed.
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7. Aggrieved by the interim order of the High Court, the jurisdiction
of this Court under Article 136 of the Constitution has been invoked by
the High Court of Delhi on the administrative side.
8. The earlier petition before the High Court related to the
recruitment process for DHJS which resulted in an interim order of the
Division Bench dated 4 March 2022. The backdrop of the grievance
before the High Court was that in 2019, the High Court had amended
the DHJS Rules by a notification dated 26 December 2019. Rule 9(3)
specifies the qualifications for direct recruits. The requirement of a
minimum age of 35 years was deleted by the notification of the High
Court dated 26 December 2019. Subsequently, by a notification dated 8
February 2022, Rule 9(3) was amended so as to stipulate the requirement
that the candidate must have attained the age of 35 years. Rule 9(3) also
provides that the candidate should not have attained the age of 45 years
on the 1st day of January of the year in which the applications for
appointment are invited. The submission is that under Article 233 of the
Constitution, the only qualification for being appointed as a District Judge
is continuous practice of seven years as an advocate or a pleader. Hence,
the submission is that though the Constitution does not prescribe a
minimum age limit for appointment as a District Judge, Rule 9(3)
introduces such a requirement which would be in breach of the
constitutional requirement.
9. The High
Court by its interim order dated 4 March 2022 held
that since the minimum age limit had been reintroduced after a hiatus of
two years, the matter would require consideration. While directing that
the petition should be listed on 7 April 2022, the High Court has directed
that the date for filling up the online application forms should be extended
beyond the next date of hearing. Effectively, as a consequence of the
interim order of the High Court, the examination which was scheduled
to be held on 20 March 2022 would stand postponed. The High Court on
its administrative side is before this Court in proceedings under Article
136 of the Constitution.
10. On 11 March 2022, while issuing notice in the Special Leave
Petition3 relating to the DJS examination, this Court passed the following
order:
HIGH COURT OF DELHI v. DEVINA SHARMA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
3 SLP (C) No 4452 of 2022
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“The Court is convened through Video Conferencing.
Heard learned senior counsel appearing on behalf of the petitioner
as also the respondent, who has appeared in person.
Issue notice.
The respondent, who appeared in person, accepts notice. The
respondent is directed to file her response by 12.03.2022.
The respondent claims that because of pandemic, she did not have
opportunity to appear in the Delhi Judicial Services Examination
for the last two years. She, accordingly, prays that as she has
crossed the prescribed age limit of 32 years in the process, she
may be permitted to appear in the present examination.
However, learned senior counsel appearing on behalf of the
petitioner submits that approximately 5,700 candidates have applied
for the said examination and the time schedule has already been
fixed for the same.
Taking into consideration the fact that the time schedule of the
above-mentioned examination has already been fixed by the Delhi
High Court, we deem it appropriate to hear the matter and dispose
of the same in accordance with law without stalling the
examination process.
However, taking into consideration the facts and circumstances
of the instant case, we permit the respondent to submit her
application for the aforesaid examination which shall remain subject
to the outcome of this petition.
List the matter on 14.03.2022.
The petitioner is directed to supply a copy of the petition to the
respondent-in-person immediately.”
11. Likewise, while entertaining the Special Leave Petitions4
pertaining to the DHJS examination, this Court passed the following
order on 11 March 2022:
“The Court is convened through Video Conferencing.
Heard learned senior counsel appearing on behalf of the petitioner.
4 SLP (C) Nos 4432-4435 of 2022
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Issue notice.
Dasti, in addition, is permitted.
It is noted that the respondents who preferred writ petitions before
the High Court have not submitted any application for the Delhi
Higher Judicial Services Examination, which is going to be
conducted on 20.03.2022. The respondents moved the Delhi High
Court straightway for relaxation of their age to appear in the above-
mentioned examination. The High Court while issuing notice,
directed to extend the date for filling up the online application
form beyond the next date of hearing i.e. 07.04.2022.
Having heard learned senior counsel appearing on behalf of the
petitioner and taking into consideration the fact that already more
than 1200 applications have been received for the aforesaid
examination, we are prima facie of the view that it is not appropriate
to extend the time limit which was prescribed.
Hence, we direct 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.
HIGH COURT OF DELHI v. DEVINA SHARMA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 petitions5 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
5 WP (C) No 3914 of 2022 & WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/
2022
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Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service
Commission6. 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. In
order to facilitate this exercise, we accept the suggestion of the High
Court that the last date for the receipt of application forms shall be
extended to 3 April 2022 and the examination shall be held on 24 April
2022. We direct that no impediment shall be caused in the conduct of the
examination and no court shall issue any order of stay at variance with
or contrary to the above directions of this Court.
HIGH COURT OF DELHI v. DEVINA SHARMA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
6 (2008) 17 SCC 703
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20. A communication of the modified dates in the above terms
shall be placed on the website of the High Court of Delhi.
Delhi Higher Judicial Service
21. The challenge before the High Court in the writ petitions7
pertains to the determination of a minimum age requirement of 35 years
for appearing for the Higher Judicial Service. Mr Amarjit Singh Chandhiok,
learned senior counsel appearing on behalf of the petitioners before the
High Court submits that:
(i)
Article 233 of the Constitution does not contain any
requirement of a minimum age and the only requirement is
that in order to qualify for appointment as District Judge, a
person should have been an advocate or a pleader for not
less than 7 years;
(ii)
No minimum age requirement is specified for appointment
to the judicial service as a consequence of which, candidates
who complete 10 years of service in the judicial service
would be eligible for being appointed to the Higher Judicial
Service before they attain the age of thirty five;
(iii)
The High Court itself had removed the minimum age
requirement of 35 years in 2019 which has been reintroduced
in February 2022; and
(iv)
Persons, such as the petitioners before the High Court should
therefore be given an opportunity of appearing for the
examinations for the reason that until the rules were
modified in February 2022, they would have been eligible
to appear for the examination if it was held at the material
time in
2020 and 2021.
22. The submission which has been urged by Mr Chandhiok,
learned senior counsel has been also adopted by Mr Sidharth Luthra,
Ms Anitha Shenoy and Mr Dama Seshadiri Naidu, learned senior counsel
as well as the counsel appearing on behalf of the intervenors and the
intervenor in-person.
23. Mr A D N Rao, learned senior counsel appearing on behalf of
the High Court has opposed the submission.
7 WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/2022
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24. In order to consider the tenability of the submission, it must be
noted at the outset that the First National Judicial Pay Commission,
commonly known as the Shetty Commission, recommended the
introduction of the requirement that for direct recruitment to the cadre
of District Judges, candidates should be between the age of 35 and 45
years with an upper age relaxation of three years for SC/ST candidates.
Paragraph 10.93 of the recommendations of the Shetty Commission is
extracted below:
“…we recommend that the candidates for direct recruitment to
the cadre of District Judges should be between 35 and 45 years
and the upper age may be relaxed by 3 years for SC/ST
candidates.”
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 India8. 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 India9. 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 Allahabad10. 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
HIGH COURT OF DELHI v. DEVINA SHARMA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
8 (2002) 4 SCC 274
9 (2002) 4 SCC 247
10 (2020) 17 SCC 401 (“Hirandra Kumar”)
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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
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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.
29. In order to obviate any further litigation and uncertainty, we
permit the High Court as a one-time measure to
allow those candidates
who were within the age cut-off of 45 years during the recruitment
years 2020 and 2021 to participate in the ensuing DHJS examinations.
30. For the Delhi Higher Judicial Service, the last date for the
receipt of applications shall stand extended to 26 March 2022 while the
examination shall be held on 3 April 2022, in those terms as stated before
this court by senior counsel representing the High Court.
31. The High Court of Delhi shall upload a corrigendum indicating
the above relaxation on its website.
32. The appeals are partly allowed in the above terms. The writ
petitions before the High shall stand disposed of.
33. Pending applications, if any, stand disposed of.
Devika Gujral
Appeals partly allowed.
HIGH COURT OF DELHI v. DEVINA SHARMA
[DR. DHANANJAYA Y CHANDRACHUD, J.]