HIRANDRA KUMAR versus  HIGH COURT OF JUDICATURE AT ALLAHABAD & ANR.
[2019] 2 S.C.R. 608, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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HIRANDRA KUMAR
v.
HIGH COURT OF JUDICATURE AT ALLAHABAD & ANR.
(Writ Petition (Civil) No. 1343 of 2018)
JANUARY 29, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Uttar Pradesh Higher Judicial Service Rules, 1975 :
rr. 8, 12 – Challenge to – Rule 8(1) inter alia postulates that
from time to time, but not later than three years from the last
recruitment, the High Court shall determine the number of officers
to be taken at the recruitment – Under r.12, inter alia minimum age
criterion of 35 years and maximum age limit of 45 years is stipulated
– Advertisement issued for direct recruitment to the Uttar Pradesh
Higher Judicial Service (UPHJS) – Petitioners applied – Debarred
on grounds of age – Constitutional validity of rr.8(1) and 12
challenged inter alia on the grounds that by operation of rr.8 and
12, candidates who have crossed the age limit prescribed between
the date of the last recruitment and the present recruitment by the
lapse of three years in the interregnum get debarred from appearing
in the examination – And also that in view of directions of Supreme
Court in Malik Mazhar Sultan regarding time schedule fixed for
filling up vacancies in judicial services, the vacancies in HJS have
to be filled up on yearly basis – Held: Constitutional validity of r.8
was upheld in Suraj Bali Singh by the Division Bench of the
Allahabad High Court, special leave petition against which
was
withdrawn – Validity of r.12 was upheld by another Division Bench
of the Allahabad High Court in Sanjay Agarwal – Certain degree
of arbitrariness may appear on the face of any cut-off or age limit
which is prescribed, since a candidate on the wrong side of the line
may stand excluded as a consequence – That, however, is no reason
to hold that the prescribed cut-off is arbitrary – Validity of the Rule
cannot be made to depend on cases of individual hardship which
inevitably arise in applying a principle of general application –
Further, directions in Malik Mazhar Sultan do not create an
enforceable right in any candidate for selection or to assert a right
to age relaxation in violation of the rule – No merit in the challenge
to the constitutional validity of rr. 8 and 12 – Petitioners had
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sufficient opportunities in the past to appear for the HJS
examinations when they were within the age limit – Having not
succeeded in that, their attempt at moving Supreme Court to seek
relaxation of the Rules or to challenge the Rules, is misconceived –
Constitution of India – Arts.142, 233(2).
Service Law – Selection – Age limit/Cut-off date – Challenge
to – Held: Power to fix cut-off date or age limit is incidental to the
regulatory control which an authority exercises over the selection
process – For a cut-off to be arbitrary and ultra vires, it must be
fixed without any rational basis or be manifestly unreasonable to
be violative of Art.14 of the Constitution – Constitution of India –
Art.14.
Rule 8(1) of the Uttar Pradesh Higher Judicial Service
Rules, 1975 inter alia postulates that from time to time, but not
later than three years from the last recruitment, the High Court
shall determine the number of officers to be taken at the
recruitment. Under Rule 12 of the 1975 Rules inter alia a minimum
age criterion of 35 years and a maximum age limit of 45 years is
stipulated (relaxable by three years for SC and ST candidates).
An advertisement was issued for direct recruitment to the Uttar
Pradesh Higher Judicial Service (UPHJS). Petitioners applied
but, were debarred on grounds of age as being not compliant
with the age limit prescribed in Rule 12. Writ petitions filed by
the petitioners and C.A No. 1262 of 2019 filed by the appellant
therein,
challenging the constitutional validity of Rules  8(1) and
12 of the 1975 Rules.
Dismissing the writ petitions and the appeal, the Court
HELD : 1.1  The directions which have been issued in Malik
Mazhar Sultan are being monitored by Supreme Court. The
Allahabad High Court has been submitting progressive reports
which are monitored by this Court for compliance. The purpose
of the directions in Malik Mazhar Sultan was to ensure that
vacancies in the district judiciary are not left unfilled over long
periods of time, undermining the efficacy of the judicial system.
Equally, the Court was cognizant of the fact that each High Court
has its recruitment rules. It is in view of that background that the
general implementation of the directions which have been issued
is being continuously monitored. The directions in Malik Mazhar
Sultan are intended to address the issue of vacancies in the district
HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT
ALLAHABAD & ANR.
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judiciary. Those directions do not override the prevailing rules
which govern selections to the HJS in the States and the
Union Territories nor do they create an enforceable right in any
candidate for selection or to assert a right to age relaxation
in violation of the rules. So long as the rules hold the field, a
candidate in order to be eligible, must fulfil the requirements
of age and other conditions which are prescribed by the Rules.
[Paras 17, 19][619-B-C, E, F]
1.2 The validity of both Rules 8 and 12 of the Uttar Pradesh
Higher Judicial Service Rules, 1975 has been addressed in
decisions rendered by the Division Benches of the Allahabad High
Court. The constitutional validity of Rule 8 has been upheld in
Suraj Bali Singh. A Special Leave Petition against the judgment
in Suraj Bali Singh was withdrawn. The validity of Rule 12 has
been upheld by another Division Bench of the Allahabad High
Court in Sanjay Agarwal. [Para 20][619-G-H]
1.3  The power to fix a cut-off date or age limit is incidental
to the regulatory control which an authority exercises over the
selection process. A certain degree of arbitrariness may appear
on the face of any cut-off or age limit which is prescribed, since a
candidate on the wrong side of the line may stand excluded as a
consequence.  That, however, is no reason to hold that the cut-
off which is prescribed, is arbitrary. In order to declare that a cut-
off is arbitrary and ultra vires, it must be of such a nature as to
lead to the conclusion that it has been fixed without any rational
basis whatsoever or is manifestly unreasonable so as to lead to a
conclusion of a violation of Article 14 of the Constitution.
[Para 21][620-A-B]
1.4  The petitioners and the appellant desire that this Court
should roll-back the date with reference to which attainment of
the upper age limit of 48 years should be considered. Such an
exercise is impermissible. Rule 12 prescribes a minimum age of
35 years and an upper age limit of 45 years (48 years for reserved
candidates belonging to the Scheduled Castes and Tribes). Under
the Rule, the age limit is prescribed with reference to the first
day of January of the year following the year in which the notice
inviting applications is published. If the relevant date were to be
rolled back, as desired by the petitioners, to an anterior point in
time, it is true that some candidates who have crossed the upper
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age limit under Rule 12 may become eligible. But, interestingly
that would affect candidates who on the anterior date may not
have attained the minimum age of 35 years but would attain that
age under the present Rule. The validity of the Rule cannot be
made to depend on cases of individual hardship which inevitably
arise in applying a principle of general application. Essentially,
the determination of cut-off dates lies in the realm of policy. A
court in the exercise of the power of judicial review does not
take over that function for itself. Plainly, it is for the rule making
authority to discharge that function while framing the Rules.
[Para 27][624-G, H; 625-A, B]
1.5 There is no merit in the grievance of discrimination.
For the purpose of determining whether a member of the Bar
has fulfilled the requirement of seven years’ practice, the cut-off
date is the last date for the submission of the applications. For
the fulfillment of the age criterion, the cut-off date which is
prescribed is the first day of January following the year in which
a notice inviting applications is being published. Both the above
cut-off dates are with reference to distinct requirements. The
seven year practice requirement is referable to the provisions of
Article 233(2) of the Constitution. The prescription of an age
limit of 45 years, or as the case may be, of 48 years for reserved
category candidates, is in pursuance of the discretion vested in
the appointing authority to
prescribe an age criterion for
recruitment to the HJS. [Para 28][625-C-E]
1.6 For the same reason, no case of discrimination or
arbitrariness can be made out on the basis of a facial comparison
of the Higher Judicial Service Rules, with the Rules governing
Nyayik Sewa. Both sets of rules cater to different cadres. A case
of discrimination cannot be made out on the basis of a comparison
of two sets of rules which govern different cadres. There is no
merit in the challenge to the constitutional validity of Rules 8
and 12. [Paras 29, 30][625-F, G]
Sandeep Gupta v. High Court of Judicature at
Allahabad through Its Registrar General Decision of
Supreme Court dated 19 July 2018 in Writ Petition
(Civil) No. 594 of 2016 – distinguished.
HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT
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Suraj Bali Singh v. Registrar General High Court of
Judicature at Allahabad Decision of  Allahabad High
Court in Writ A. 20708 of 2012 ; Sanjay Agarwal v.
State of UP (2007) 3 UPLBEC 2558 – approved.
Dr Ami Lal Bhat v. State of Rajasthan and Others (1997)
6 SCC 614 : [1997] 1 Suppl. SCR 543 ; State of Bihar
v. Ramjee Prasad (1990) 3 SCC 368 : [1990] 2 SCR
468 ; Union of India v. Sudheer Kumar Jaiswal (1994)
4 SCC 212 : Union of India v. Shivbachan Rai (2001)
9 SCC 356 ; Council of Scientific and Industrial
Research v. Ramesh Chandra Agarwal (2009) 3 SCC
35 : [2008] 17 SCR 1378 – relied on.
Delhi Transport Corporation v. DTC Mazdoor Congress
(1991) Supp. 1 SCC 600 : [1990] 1 Suppl.  SCR 142 ;
Gauri Shankar Prasad v. Registrar General, High Court
of Judicature at Allahabad Decision of Allahabad High
Court in Writ A. No. 13309/2018 ; Malik Mazhar
Sultan v. U.P Public Service Commission (2008) 17 SCC
703 – referred to.
Case Law Reference
[1990] 1 Suppl.  SCR 142
referred to
Para 8
(2008) 17 SCC 703
referred to
Para 9
[1997] 1 Suppl. SCR 543
relied on
Para 12
(2007) 3 UPLBEC 2558
approved
Para 12
[1990] 2 SCR 468
relied on
Para 22
(1994) 4 SCC 212
relied on
Para 22
(2001) 9 SCC 356
relied on
Para 22
[2008] 17 SCR 1378
relied on
Para 22
CIVIL ORIGINAL/APPELLATE JURISDICTION : Writ
Petition (Civil) No. 1343 of 2018.
Under Article 32 of the Constitution of India.
WITH
C.A. No. 1262 of 2019,
W.P.(C) No. 1382 of 2018.
Vivek Singh, Swastik Dalai, Abhas Kumar, Sunny Choudhary,
Ms. Preetika Dwivedi, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Leave granted in SLP(C) No. 15704 of 2018.
2 . This batch of cases consists of two writ petitions under Article
32 and a Special Leave Petition under Article 136 of the Constitution of
India.
3. The constitutional validity of Rules 8(1) and 12 of the Uttar
Pradesh Higher Judicial Service Rules, 19751 is in issue in these
proceedings. Rules 8 and 12 are extracted below:-
“8. Number of appointments to be made – (1) The Court, shall,
from time to time, but not later than three years from the last
recruitment, fix the number of officers to be taken at the
recruitment keeping in view the vacancies then existing and likely
to occur in the next two years.
(2)  If at any selection the number of selected direct recruits
available for appointment is less than the number of recruits decided
by the Court to be taken from that source, the Court may increase
correspondingly the number of recruits to be taken by promotion
from the Nyayik Sewa;
Provided that the number of vacancies filled in as aforesaid under
this sub rule shall be taken into consideration while fixing the number
of vacancies to be allotted to the quota of direct recruits at the
next recruitment, and the quota for direct recruits may be raised
accordingly; so, however, that the percentage of direct recruits in
the service does not in any case exceed 25% of strength of the
service.
…
12.  Age – A candidate for direct
recruitment must have attained
the age of 35 years and must not have attained the age of 45
years on the first day of January next following the year in which
the notice inviting applications is published;
Provided that the upper age limit shall be higher by three years in
case of candidates belonging to Scheduled Castes and Scheduled
Tribes and such other categories as may be notified by the
Government from time to time.”
1 Rules of 1975
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4. On 10 May 2018, an advertisement was issued for direct
recruitment to the Uttar Pradesh Higher Judicial Service2. The petitioners
applied for selection. The validity of Rule 8(1) was challenged before
the Allahabad High Court in Gauri Shankar Prasad v Registrar
General, High Court of Judicature at Allahabad3. By its judgment
dated 31 May 2018, a Division Bench of the High Court noted that the
Rules have been upheld by a co-ordinate Bench in Suraj Bali Singh v
Registrar General High Court of Judicature at Allahabad4(“Suraj
Bali Singh”)decided on 8 May 2017. The Division Bench followed its
binding precedent and held that the petitioner was not entitled to any
relief. The High Court also observed that nothing prevented the petitioner
from appearing in the recruitment process in 2012 and 2016 and hence,
it was not open to him to make a grievance of being age barred in terms
of the advertisement for 2018.
5. In the Special Leave Petition arising from the judgment of the
Allahabad High Court, an interim direction was issued on 18 June 2018,
permitting the appellant to appear in the preliminary examination for the
Higher Judicial Service and for the main examination. The result was
directed to be kept in a sealed cover.
6. Insofar as the petitioner in the proceedings under Article 32 is
concerned5, an admit card was issued to him to appear in the preliminary
examination in July 2018 and he
was declared to be successful. The
High Court published a list of candidates who had obtained qualifying
marks but could not be allowed to proceed to the next stage. The name
of the petitioner appeared in that list as a candidate who is debarred on
grounds of age. The petitioner submitted a representation to the High
Court.  Not having found redressal, he moved these proceedings under
Article 32 of the Constitution of India. The petitioner belongs to a reserved
category but has crossed the extended age limit of forty eight years.
This date of birth is 1 January 1971.
7. The petitioner in the accompanying writ petition6  belongs to
the general category.  He too appeared for the preliminary examination,
but when the results were declared, it was notified that he was not
2 UPHJS
3 Writ A. No. 13309/2018
4 Writ A. 20708 of 2012
5 WP (C) 1343 of 2019
6 Writ Petition (C) No. 1382 of 2018 (Devi Dyal Singla v. High Court of Judicature at
Allahabad through Registrar General)
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compliant with the age limit prescribed in Rule 12. In the writ petitions
filed by Hirandra Kumar and Devi Dyal Singla, the constitutional validity
of Rules 8(1) and 12 have been called into question. In the accompanying
special leave petition in which leave has been granted today, the validity
of Rules 8 and 12 has been questioned.
8. The first limb of the submissions urged on behalf of the
petitioners is formulated below:
(i)
Under Rule 8, the High Court is required to determine not
later than three years from the last recruitment, the number
of officers to be taken at the next recruitment keeping in
view the existing and likely vacancies of the next two years;
(ii)
Rule 8 recognises that recruitment to the UPHJS should take
place at intervals not exceeding three years;
(iii)
Rule 12 prescribes that a candidate for direct recruitment
should have attained the age of 35 years and should not have
crossed the age of 45 years on the first day of January,
following the year in which the notice inviting applications is
published;
(iv)
As a result of the operation of Rules 8 and 12, a candidate
who has crossed the age limit prescribed between the date
of the last recruitment and the present recruitment process
would be debarred from appearing in the competitive
examination;
(v)
Candidates who have become debarred by the lapse of three
years in the interregnum would not be able to appear at the
examination; and
(vi)
This constitutes a violation of the right to
fair and equal
treatment in matters of public employment guaranteed by
Articles 14 and 16 of the Constitution of India.Reliance in
this regard has been placed on the judgment of this Court
in Delhi Transport Corporation v. DTC Mazdoor
Congress7.
9. The second limb of the submissions is as follows:
(i) By the judgment of this Court in Malik Mazhar Sultan v U.P Public
Service Commission8 (“Malik Mazhar Sultan”), a time schedule has
been fixed for filling up vacancies in the cadre of District Judge and for
posts in the judicial service of the state;
7 (1991) Supp. 1 SCC 600
8 (2008) 17 SCC 703
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(ii) The time schedule prescribed indicates that vacancies in the HJS
have to be filled up on a yearly basis;
(iii) In the State of Uttar Pradesh, as a result of Rule 8, the recruitment
process is scheduled to be carried out at intervals of not more than three
years;
(iv) The time schedule which has been prescribed in Malik Mazhar
Sultan (supra) is mandatory; and
(v) The cut-off for determining fulfilment of the age criterion must be
prescribed with reference to the year in which recruitment must take
place and hence, the debarment of officers, who have crossed the upper
age limit as a result of the operation of Rule 12, is contrary to the decision
of this Court.
10. The third limb of the submissions is that the prescription of an
age limit of 45 years (48 years in the case of candidates belonging to the
Scheduled Caste and Scheduled Tribe category) with reference to the
first day of January of the year following the year in which the notice
inviting applications is published, is arbitrary and violative of Article 14
of the Constitution.
11. The fourth limb of the argument is that, in determining the
requirement of seven years’ standing at the Bar, the advertisement for
recruitment has prescribed the last date fixed for the submission of
application forms as the relevant date.  On the other hand, in determining
the age criterion of 35 years or, as the case may be, 45 years, it is the
first day of January of the year following the date on which the
advertisement is issued which is adopted. This, it has been submitted,
results in discrimination.
12. Opposing this submission, Ms Preetika Dwivedi, learned
counsel appearing on behalf of the High Court has urged the following
submissions:
(i)
The Rules of 1975 are legislative in character and it is only in
a situation of manifest arbitrariness that a rule can be held to
be ultra vires;
(ii) A candidate has no fundamental right to assert that vacancies
for direct recruitment must be filled up every year. The right
of a candidate is only to be considered for selection on the basis of
the Rules as they exist when the selection takes place;
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(iii) Rule 8(1) prescribes that recruitment shall take place from
time to time, but not later than three years from the date of
the last recruitment. The High Court conducted its recruitment
process in 2012, 2014 and 2016 and has been submitting
compliance reports periodically to this Court, which is
monitoring the directions given in Malik Mazhar Sultan
(supra). The High Court has complied with Rule 8;
(iv) The petitioners who did not willingly participate or having
participated on previous occasions have been held to be
unsuccessful, cannot assert a violation of their fundamental
rights.
(v) The decision inMalik Mazhar Sultan(supra) clearly specifies
that the general directions which were issued by this Court to
all High Courts to hold recruitment every year is subject to
the Rules of each High Court. In any event, these general
directions do not vest any enforceable right in a candidate;
(vi) The constitutional validity of Rule 8 has been upheld by the High
Court in the decision in Suraj Bali Singh (supra) against which a
special leave petition has been dismissed as withdrawn.
(vii) The requirement in Rule 12 that a candidate for direct recruitment
must not have attained the age of 45 years (48 years for SC/ST
candidates) on the first day of January of the year following the
year in which the notice inviting applications is published, is
reasonable;
(viii)The prescription of cut-off dates falls within the realm of discretion
permissible to an authority
which frames subordinate legislation.
Similar provisions have been upheld in several decisions of this Court
including Dr Ami Lal Bhat v State of Rajasthan and Others9;
(ix) The validity of Rule 12 has been upheld by the Allahabad High
Court inSanjay Agarwal v State of U P10  (“Sanjay Agarwal”).Similar
rules prescribing an age criterion are to be found in the Rules framed
by other states, including States of Uttarakhand, Haryana, Rajasthan
and Orissa.
13. The rival submissions fall for consideration.
9 (1997) 6 SCC 614
10 (2007) 3 UPLBEC 2558
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14. Rule 6 of the Rules of 1975 prescribes the quota for various
sources of recruitment to the UPHJS. 75% of the posts have to be filled
up through candidates drawn from the Uttar Pradesh Nyayik Sewa.
This comprises of (i) 65% candidates selected on the basis of merit-
cum-seniority and the passing of a suitability test by judicial officers of
the rank of Civil Judge (Senior Division);  and  (ii) 10% from amongst
Civil Judge (Senior Division) rank officers with not less than five years’
service drawn on the basis of merit through a limited competitive
examination. The balance of 25% is to be drawn by direct recruitment
from the Bar.
15. Rule 8(1) postulates that the High Court shall from time to
time, determine the number of officers to be taken at the recruitment,
keeping in view the vacancies which then exist and which are likely to
occur in the next two years. Sub-rule (2) of Rule 8, however, prescribes
that if the number of selected direct recruits available for appointment is
less than the number decided by the Court from that source, the Court
may correspondingly increase the number of recruits taken by promotion
from the Nyayik Sewa.
16. Under Rule 12, a minimum age criterion of 35 years and a
maximum age limit of 45 years is stipulated which is relaxable by three
years for Scheduled Caste and Scheduled Tribe candidates. The age
limit is prescribed with reference to the first day
of January of the year
which follows the year in which the notice inviting applications is
published.
17. The submission which was urged on behalf of the petitioners
is based on the decision of this Court in Malik Mazhar Sultan (supra).
Whileformulating a time schedule for the filling up of vacancies both in
the Higher Judicial Service and at all other levels in the district judiciary,
this Court was cognizant of the fact that recruitment rules are in operation
in all the States and Union Territories. Bearing this in mind, this Court
observed:
“5. Before we issue general directions and the time schedule to
be adhered to for filling vacancies that may arise in subordinate
courts and District Courts, it is necessary to note that selections
are required to be conducted by the authorities concerned as per
the existing Judicial Service Rules in the respective States/Union
Territories. We may, however, note that, progressively, the
authorities concerned would consider, discuss and eventually may
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arrive at a consensus that the selection process be conducted by
the High Court itself or by the Public Service Commission under
the control and supervision of the High Court.”
The directions which have been issued in Malik Mazhar Sultan (supra)
are being monitored by this Court. The Allahabad High Court has been
submitting progressive reports which are monitored by this Court for
compliance. The purpose of the directions in Malik Mazhar Sultan
(supra)was to ensure that vacancies in the district judiciary are not left
unfilled over long periods of time, undermining the efficacy of the judicial
system. Equally, the Court was cognizant of the fact that each High
Court has its recruitment rules. It is in view of that background that the
general implementation of the directions which have been issued is being
continuously monitored.
18. The real issue is as to whether the decision in Malik Mazhar
Sultan (supra)can be construed as leading to a vested right in a candidate
who applies for recruitment to the HJS to assert that they may be granted
an age relaxation by virtue of the fact that between the last date of
recruitment and the current, the candidate has crossed the prescribed
age limit.
19. The directions in Malik Mazhar Sultan (supra)are intended
to address the issue of vacancies in the district judiciary. Those directions
do not override the prevailing rules which govern selections to the HJS
in the States and the Union Territories nor do they create an
enforceable
right in any candidate for selection or to assert a right to age relaxation
in violation of the rules. So long as the rules hold the field, a candidate in
order to be eligible, must fulfil the requirements of age and other conditions
which are prescribed by the Rules.
20. The submission which has been urged in these proceedings is
that the prescription “of not later than three years” in Rule 8 and of the
upper age limit in Rule 12 is ultra vires and arbitrary. The validity of both
Rules 8 and 12 has been addressed in decisions rendered by the Division
Benches of the Allahabad High Court. The constitutional validity of Rule
8 has been upheld in Suraj Bali Singh (supra). The same submission
that has been urged before this Court was considered in that decision by
the Division Bench.
A Special Leave Petition against the judgment in Suraj Bali Singh
(supra)was withdrawn on 4 August 2017. The validity of Rule 12 has
been upheld by another Division Bench of the Allahabad High Court in
Sanjay Agarwal (supra).
HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT
ALLAHABAD [DR. DHANANJAYA Y CHANDRACHUD, J.]
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21. The legal principles which govern the determination of a cut-
off date are well settled. The power to fix a cut-off date or age limit is
incidental to the regulatory control which an authority exercises over the
selection process. A certain degree of arbitrariness may appear on the
face of any cut-off or age limit which is prescribed, since a candidate on
the wrong side of the line may stand excluded as a consequence.  That,
however, is no reason to hold that the cut-off which is prescribed, is
arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it
must be of such a nature as to lead to the conclusion that it has been
fixed without any rational basis whatsoever or is manifestly unreasonable
so as to lead to a conclusion of a violation of Article 14 of the Constitution.
22. Several decisions of this Court have dealt with the issue. In
Dr Ami Lal Bhat v. State of Rajasthan11,a two judge Bench of this
Court dealt with the provisions contained in the Rajasthan Medical
Services (Collegiate Branch) Rules, 1962. Rule 11(1) prescribed that a
candidate for direct recruitment should not have attained the age of 35
years on the first day of January following the last date fixed for the
receipt of applications.Rejecting the contention that the cut-off was
arbitrary, this Court held that the fixation of a cut-off prescribing maximum
or minimum age requirements for a post is
in the discretion of the rule
making authority. The Court held thus:
“5. ….In the first place the fixing of a cut-off date for determining
the maximum or minimum age prescribed for a post is not, per se,
arbitrary.   Basically, the fixing of a cut-off date for determining
the maximum or minimum age required for a post, is in the
discretion of the rule-making authority or the employer as the
case may be.  One must accept that such a cut-off cannot be
fixed with any mathematical precision and in such a manner as
would avoid hardship in all conceivable cases.  As soon as a cut-
off date is fixed there will be some persons who fall on the right
side of the cut-off date and some persons who will fall on the
wrong side of the cut-off date. That cannot make the cut-off
date, per se, arbitary unless the cut-off date is so wide off the
mark as to make it wholly unreasonable.”
The same view has been adopted in other decisions, including
those in (i) State of Bihar v Ramjee Prasad12 (“Ramjee Prasad”) ;
11 (1997) 6 SCC 614
12 (1990) 3 SCC 368
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(ii) Union of India v Sudheer Kumar Jaiswal13 (“Sudheer Kumar
Jaiswal”) ; (iii) Union of India v Shivbachan Rai14 (“Shivbachan Rai”)
; and (iv) Council of Scientific and Industrial Research v Ramesh
Chandra Agarwal15 (“Ramesh Chandra Agarwal”).
23. In Ramjee Prasad (supra), the State issued advertisements
for the post of Assistant Professors and prescribed 31 January 1988 as
the last date for the receipt of applications. Applicants must have had
three years of experience. Contending that applicants could not meet
the prescribed requirement of experience by the date prescribed, the
cut-off date was challenged as being arbitrary and ultra vires Article 14
of the Constitution. A two judge Bench of this Court upheld the cut-off
date and held thus:
“8. It is obvious that in fixing the last date as January 31, 1988 the
State Government had only followed the past practice and if the
High Court’s attention had been invited to this fact it would perhaps
have refused to interfere since its interference is based on the
erroneous belief that the past practice was to fix June 30 of the
relevant year as the last date for receipt of applications. Except
for leaning on a past practice the High Court has not assigned any
reasons for its choice of the date. As pointed out by this Court
the choice of date cannot be dubbed as arbitrary even if no
particular reason is forthcoming for the same unless it is
shown to be capricious or whimsical or wide off the
reasonable mark.
The choice of the date for advertising
the posts had to depend on several factors, e.g. the number
of vacancies in different disciplines, the need to fill up the
posts, the availability of candidates, etc. It is not the case of
anyone that experienced candidates were not available in sufficient
numbers on the cut-off date. Merely because the respondents
and some others would qualify for appointment if the last date for
receipt of applications is shifted from January 31, 1988 to June
30, 1988 is no reason for dubbing the earlier date as arbitrary or
irrational.”
(Emphasis supplied)
24. In Sudhir Kumar Jaiswal (supra), the date with reference
to which the age eligibility of a person desirous of sitting in the competitive
examination for recruitment to the Indian Administrative Service/Indian
13 (1994) 4 SCC 212
14 (2001) 9 SCC 356
15 (2009) 3 SCC 35
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Foreign Service was fixed as 1 August of every year.  The preliminary
exam would normally be held annually before 1 August. Rejecting the
contention that that the cut-off date is arbitrary and hence ultra vires, a
two judge Bench of this Court held thus:
“5. As to when choice of a cut-off date can be interfered was
opined by Holmes, J. in Louisville Gas & Electric Co. v. Clell
Coleman [277 US 32 : 72 L Ed 770 (1927)] by stating that if the
fixation be “very wide of any reasonable mark”, the same can be
regarded arbitrary. What was observed by Holmes, J. was cited
with approval by a Bench of this Court in Union of
India v. Parameswaran Match Works [(1975) 1 SCC 305 : AIR
1974 SC 2349] (in paragraph 10) by also stating that choice of a
date cannot always be dubbed as arbitrary even if no particular
reason is forthcoming for the choice unless it is shown to be
capricious or whimsical in the circumstances. It was further pointed
out where a point or line has to be, there is no mathematical or
logical way of fixing it precisely, and so, the decision of the
legislature or its delegate must be accepted unless it can be said
that it is very wide of any reasonable mark.
6. The aforesaid decision was cited with approval in D.G. Gouse
and Co. v. State of Kerala [(1980) 2 SCC 410 : AIR 1980 SC
271] ; so also in State of Bihar v. Ramjee Prasad [(1990) 3 SCC
368] …
7. In this context, it would also be
useful to state that when a
court is called upon to decide such a matter, mere errors are not
subject to correction in exercise of power of judicial review; it is
only its palpable arbitrary exercise which can be declared to be
void…
8. …As to why the cut-off date has not been changed despite the
decision to hold preliminary examination, has been explained in
paragraph 3 of the special leave petition. The sum and substance
of the explanation is that preliminary examination is only a screening
test and marks obtained in this examination do not count for
determining the order of merit, for which purpose the marks
obtained in the main examination, which is still being held after 1st
August, alone are material. In view of this, it cannot be held that
continuation of treating 1st August as the cut-off date, despite the
Union Public Service Commission having introduced the method
of preliminary examination which is held before 1st August, can
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be said to be “very wide off any reasonable mark” or so capricious
or whimsical as to permit judicial interference.”
25. In Shivbachan Rai (supra), the Union Public Service
Commission advertised for direct recruitment to the post of Assistant
Director in the Central  Poultry Breeding Farms and prescribed an age
limit of 35 years as on 31 May 1990 with a relaxation of five years for
government servants. The earlier notification did not provide a limitation
on the age relaxation. The five-year stipulation was challenged as being
arbitrary and ultra vires. A two judge Bench upheld the notification and
held thus:
“6. …Prescribing of any age limit for a given post, as also
deciding the extent to which any relaxation can be given if
an age limit is prescribed, are essentially matters of policy.
It is, therefore, open to the Government while framing rules under
the proviso to Article 309 of the Constitution to prescribe such
age limits or to prescribe the extent to which any relaxation can
be given. Prescription of such limit or the extent of relaxation to
be given, cannot be termed as arbitrary or unreasonable. The
only basis on which the respondent moved the Central
Administrative Tribunal was the earlier Rules of 1976 under which,
though an age limit was prescribed, a limit had not been placed on
the extent of relaxation which could be granted. If at all any charge
of arbitrariness can be levied in such cases, not prescribing any
basis for granting relaxation
when no limit is placed on the extent
of relaxation, might lead to arbitrariness in the exercise of power
of relaxation...”
(Emphasis supplied)
26. In Ramesh Chandra Agarwal (supra), the Council of Scientific
and Industrial Research framed a scheme for the absorption of
researchers working in their laboratories and institutes following the
directions of this Court. It was prescribed that eligible applicants must
have 15 years of continuous research on 2 May 1997. The Director was
conferred powers to relax the requirement. Contending that that the
tenure of researchers is ordinarily 13 years, the prescription of 15 years
was challenged as being ultra vires and arbitrary. This contention was
accepted by the High Court. On appeal, a two judge Bench of this Court
examined the scheme and applicable avenues to researchers. Noting
that there was no ceiling of 13 years on researchers, this Court upheld
the prescription of 15 years and the cut-off date. The Court held thus:
HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT
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“29. ”State” is entitled to fix a cut-off date. Such a decision
can be struck down only when it is arbitrary. Its invalidation
may also depend upon the question as to whether it has a
rational nexus with the object sought to be achieved. 2-5-
1997 was the date fixed as the cut-off date in terms of the Scheme.
The reason assigned therefore was that this was the date when
this Court directed the appellants to consider framing of a
regularisation scheme. They could have picked up any other date.
They could have even picked up the date of the judgment passed
by the Central Administrative Tribunal. As rightly contended by
Mr Patwalia, by choosing 2-5-1997 as the cut-off date, no illegality
was committed. Ex facie, it cannot be said to be arbitrary.
30. The High Court, however, proceeded on the basis that the
cut-off date should have been the date of issuance of the
notification. The employer in this behalf has a choice. Its
discretion can be held to be arbitrary but then the High
Court only with a view to show sympathy to some of the
candidates could not have fixed another date, only because
according to it, another date was more suitable. In law it
was not necessary. The Court’s power of judicial review in
this behalf although exists but is limited in the sense that
the impugned action can be struck down only when it is
found to be arbitrary. It is possible that by reason of such a
cut-off
date an employee misses his chance very narrowly.
Such hazards would be there in all the services. Only
because it causes hardship to a few persons or a section of
the employees may not by itself be a good ground for
directing fixation of another cut-off date.”
(Emphasis supplied)
27. These judgments provide a clear answer to the challenge.
The petitioners and the appellant desire that this Court should roll-back
the date with reference to which attainment of the upper age limit of 48
years should be considered. Such an exercise is impermissible. In order
to indicate the fallacy in the submission, it is significant to note that Rule
12 prescribes a minimum age of 35 years and an upper age limit of 45
years (48 years for reserved candidates belonging to the Scheduled Castes
and Tribes). Under the Rule, the age limit is prescribed with reference
to the first day of January of the year following the year in which the
notice inviting applications is published. If the relevant date were to be
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rolled back, as desired by the petitioners, to an anterior point in time, it is
true that some candidates who have crossed the upper age limit under
Rule 12 may become eligible. But, interestingly that would affect
candidates who on the anterior date may not have attained the minimum
age of 35 years but would attain that age under the present Rule. We
are adverting to this aspect only to emphasise that the validity of the
Rule cannot be made to depend on cases of individual hardship which
inevitably arise in applying a principle of general application. Essentially,
the determination of cut-off dates lies in the realm of policy. A court in
the exercise of the power of judicial review does not take over that
function for itself. Plainly, it is for the rule making authority to discharge
that function while framing the Rules.
28. We do not find any merit in the grievance of discrimination.
For the purpose of determining whether a member of the Bar has fulfilled
the requirement of seven years’ practice, the cut-off date is the last date
for the submission of the applications. For the fulfillment of the age
criterion, the cut-off date which is prescribed is the first day of January
following the year in which a notice inviting applications is being published.
Both the above cut-off dates are with reference to distinct requirements.
The seven year practice requirement is referable to the provisions of
Article 233(2) of the Constitution. The prescription of an
age limit of 45
years, or as the case may be, of 48 years for reserved category
candidates, is in pursuance of the discretion vested in the appointing
authority to prescribe an age criterion for recruitment to the HJS.
29. For the same reason, no case of discrimination or arbitrariness
can be made out on the basis of a facial comparison of the Higher Judicial
Service Rules, with the Rules governing Nyayik Sewa. Both sets of
rules cater to different cadres. A case of discrimination cannot be made
out on the basis of a comparison of two sets of rules which govern
different cadres.
30. For the above reasons, we hold that there is no merit in the
challenge to the constitutional validity of Rules 8 and 12. We concur
with the reasoning of the High Court in upholding Rules 8 and 12 in the
judgments noted earlier.
31. In the alternative, it has been urged on behalf of the petitioners
that since they have been granted permission to appear at the
examinations in pursuance of the interim directions that were issued
during the pendency of these proceedings, the Court may exercise its
jurisdiction under Article 142 of the Constitution of India to direct that
the results be declared.
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32. We are unable to accede to that request. For one thing, there
would be other candidates who have not approached this Court and who
would have been in the same position of not meeting the age criterion.
Moreover, allowing a group of candidates to breach the age criterion by
taking recourse to the power under Article 142 of the Constitution of
India would, in our view not be appropriate inviting, as it does, a breach
of the governing Rules for the UP Higher Judicial Service.
33. We find that the order of this Court in Sandeep Gupta v.
High Court of Judicature at Allahabad through Its Registrar
General16,dated on 19 July 2018 is distinguishable. While taking recourse
to the power vested in this Court under Article 142 of the Constitution of
India, a two Judge Bench of this Court had observed that the order was
passed in the peculiar facts and circumstances and shall not be treated
as a precedent.  Moreover, in that case, the results had already been
declared which was a consideration which weighed with the Court in
taking recourse to the power under Article 142.
34. In the facts and circumstances of the present batch of cases,
we see no reason or justification to interfere. The petitioners had sufficient
opportunities in the past to appear for the HJS examinations at a time
when they were within the age limit. Having not succeeded in that, their
attempt at moving this Court to seek a
relaxation of the Rules or through
a challenge to the Rules, is misconceived.
35. For the above reasons, we find no merit in the writ petitions or
in the appeal.The writ petitions as well as the civil appeal shall accordingly,
stand dismissed. However, there shall be no order as to costs.
Nidhi Jain
Writ petitions and appeal are dismissed.
16 Writ Petition  (Civil) No. 594/2016