HIRANDRA KUMAR versus HIGH COURT OF JUDICATURE AT ALLAHABAD & ANR.

HIRANDRA KUMAR

HIGH COURT OF JUDICATURE AT ALLAHABAD & ANR.(Writ Petition (Civil) No. 1343 of 2018)

JANUARY 29, 2019

B[DR. DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Uttar Pradesh Higher Judicial Service Rules, 1975 :

rr. 8, 12 – Challenge to – Rule 8(1) inter alia postulates thatfrom time to time, but not later than three years from the lastCrecruitment, the High Court shall determine the number of officersto be taken at the recruitment – Under r.12, inter alia minimum agecriterion of 35 years and maximum age limit of 45 years is stipulated– Advertisement issued for direct recruitment to the Uttar PradeshHigher Judicial Service (UPHJS) – Petitioners applied – DebarredDon grounds of age – Constitutional validity of rr.8(1) and 12challenged inter alia on the grounds that by operation of rr.8 and12, candidates who have crossed the age limit prescribed betweenthe date of the last recruitment and the present recruitment by thelapse of three years in the interregnum get debarred from appearingin the examination – And also that in view of directions of SupremeECourt in Malik Mazhar Sultan regarding time schedule fixed forfilling up vacancies in judicial services, the vacancies in HJS haveto be filled up on yearly basis – Held: Constitutional validity of r.8was upheld in Suraj Bali Singh by the Division Bench of theAllahabad High Court, special leave petition against which wasFwithdrawn – Validity of r.12 was upheld by another Division Benchof the Allahabad High Court in Sanjay Agarwal – Certain degreeof arbitrariness may appear on the face of any cut-off or age limitwhich is prescribed, since candidate on the wrong side of the linemay stand excluded as consequence – That, however, is no reasonto hold that the prescribed cut-off is arbitrary – Validity of the RuleGcannot be made to depend on cases of individual hardship whichinevitably arise in applying principle of general application –Further, directions in Malik Mazhar Sultan do not create anenforceable right in any candidate for selection or to assert rightto age relaxation in violation of the rule – No merit in the challengeHto the constitutional validity of rr. 8 and 12 – Petitioners had

sufficient opportunities in the past to appear for the HJSexaminations when they were within the age limit – Having notsucceeded in that, their attempt at moving Supreme Court to seekrelaxation 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 – Challengeto – Held: Power to fix cut-off date or age limit is incidental to theregulatory control which an authority exercises over the selectionprocess – For cut-off to be arbitrary and ultra vires, it must befixed without any rational basis or be manifestly unreasonable tobe violative of Art.14 of the Constitution – Constitution of India –Art.14.

Rule 8(1) of the Uttar Pradesh Higher Judicial ServiceRules, 1975 inter alia postulates that from time to time, but notlater than three years from the last recruitment, the High Courtshall determine the number of officers to be taken at therecruitment. Under Rule 12 of the 1975 Rules inter alia minimumage criterion of 35 years and maximum age limit of 45 years isstipulated (relaxable by three years for SC and ST candidates).An advertisement was issued for direct recruitment to the UttarPradesh Higher Judicial Service (UPHJS). Petitioners appliedbut, were debarred on grounds of age as being not compliantwith the age limit prescribed in Rule 12. Writ petitions filed bythe petitioners and C.A No. 1262 of 2019 filed by the appellanttherein, challenging the constitutional validity of Rules 8(1) and12 of the 1975 Rules.

Dismissing the writ petitions and the appeal, the Court

HELD : 1.1 The directions which have been issued in MalikMazhar Sultan are being monitored by Supreme Court. TheAllahabad High Court has been submitting progressive reportswhich are monitored by this Court for compliance. The purposeof the directions in Malik Mazhar Sultan was to ensure thatvacancies in the district judiciary are not left unfilled over longperiods of time, undermining the efficacy of the judicial system.Equally, the Court was cognizant of the fact that each High Courthas its recruitment rules. It is in view of that background that thegeneral implementation of the directions which have been issuedis being continuously monitored. The directions in Malik MazharSultan are intended to address the issue of vacancies in the district

Ajudiciary. Those directions do not override the prevailing ruleswhich govern selections to the HJS in the States and theUnion Territories nor do they create an enforceable right in anycandidate for selection or to assert right to age relaxationin violation of the rules. So long as the rules hold the field, acandidate in order to be eligible, must fulfil the requirementsBof 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 PradeshHigher Judicial Service Rules, 1975 has been addressed indecisions rendered by the Division Benches of the Allahabad HighCCourt. The constitutional validity of Rule 8 has been upheld inSuraj Bali Singh. Special Leave Petition against the judgmentin Suraj Bali Singh was withdrawn. The validity of Rule 12 hasbeen upheld by another Division Bench of the Allahabad HighCourt in Sanjay Agarwal. [Para 20][619-G-H]

D1.3 The power to fix cut-off date or age limit is incidentalto the regulatory control which an authority exercises over theselection process. certain degree of arbitrariness may appearon the face of any cut-off or age limit which is prescribed, since acandidate on the wrong side of the line may stand excluded as aconsequence. That, however, is no reason to hold that the cut-Eoff which is prescribed, is arbitrary. In order to declare that cut-off is arbitrary and ultra vires, it must be of such nature as tolead to the conclusion that it has been fixed without any rationalbasis whatsoever or is manifestly unreasonable so as to lead to aconclusion of violation of Article 14 of the Constitution.F[Para 21][620-A-B]

1.4 The petitioners and the appellant desire that this Courtshould roll-back the date with reference to which attainment ofthe upper age limit of 48 years should be considered. Such anexercise is impermissible. Rule 12 prescribes minimum age of35 years and an upper age limit of 45 years (48 years for reservedGcandidates belonging to the Scheduled Castes and Tribes). Underthe Rule, the age limit is prescribed with reference to the firstday of January of the year following the year in which the noticeinviting applications is published. If the relevant date were to berolled back, as desired by the petitioners, to an anterior point inHtime, it is true that some candidates who have crossed the upper

age limit under Rule 12 may become eligible. But, interestinglythat would affect candidates who on the anterior date may nothave attained the minimum age of 35 years but would attain thatage under the present Rule. The validity of the Rule cannot bemade to depend on cases of individual hardship which inevitablyarise in applying principle of general application. Essentially,the determination of cut-off dates lies in the realm of policy. Acourt in the exercise of the power of judicial review does nottake over that function for itself. Plainly, it is for the rule makingauthority 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 member of the Barhas fulfilled the requirement of seven years’ practice, the cut-offdate is the last date for the submission of the applications. Forthe fulfillment of the age criterion, the cut-off date which isprescribed is the first day of January following the year in whicha notice inviting applications is being published. Both the abovecut-off dates are with reference to distinct requirements. Theseven year practice requirement is referable to the provisions ofArticle 233(2) of the Constitution. The prescription of an agelimit of 45 years, or as the case may be, of 48 years for reservedcategory candidates, is in pursuance of the discretion vested inthe appointing authority to prescribe an age criterion forrecruitment to the HJS. [Para 28][625-C-E]

1.6 For the same reason, no case of discrimination orarbitrariness can be made out on the basis of facial comparisonof the Higher Judicial Service Rules, with the Rules governingNyayik Sewa. Both sets of rules cater to different cadres. caseof discrimination cannot be made out on the basis of comparisonof two sets of rules which govern different cadres. There is nomerit in the challenge to the constitutional validity of Rules 8and 12. [Paras 29, 30][625-F, G]

Sandeep Gupta v. High Court of Judicature atAllahabad through Its Registrar General Decision ofSupreme Court dated 19 July 2018 in Writ Petition(Civil) No. 594 of 2016 – distinguished.

ASuraj Bali Singh v. Registrar General High Court ofJudicature at Allahabad Decision of Allahabad HighCourt 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)B6 SCC 614 : [1997] 1 Suppl. SCR 543 ; State of Biharv. Ramjee Prasad (1990) 3 SCC 368 : [1990] 2 SCR468 ; 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 IndustrialResearch v. Ramesh Chandra Agarwal (2009) 3 SCCC35 : [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 Courtof Judicature at Allahabad Decision of Allahabad HighDCourt in Writ A. No. 13309/2018 ; Malik MazharSultan v. U.P Public Service Commission (2008) 17 SCC703 – referred to.

CIVIL ORIGINAL/APPELLATE JURISDICTION : WritGPetition (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,HMs. Preetika Dwivedi, Advs. for the appearing parties.

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 Article32 and Special Leave Petition under Article 136 of the Constitution ofIndia.

3. The constitutional validity of Rules 8(1) and 12 of the UttarPradesh Higher Judicial Service Rules, 1975[1] is in issue in theseproceedings. 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 lastrecruitment, fix the number of officers to be taken at therecruitment keeping in view the vacancies then existing and likelyto occur in the next two years.

(2) If at any selection the number of selected direct recruitsavailable for appointment is less than the number of recruits decidedby the Court to be taken from that source, the Court may increasecorrespondingly the number of recruits to be taken by promotionfrom the Nyayik Sewa;

Provided that the number of vacancies filled in as aforesaid underthis sub rule shall be taken into consideration while fixing the numberof vacancies to be allotted to the quota of direct recruits at thenext recruitment, and the quota for direct recruits may be raisedaccordingly; so, however, that the percentage of direct recruits inthe service does not in any case exceed 25% of strength of theservice.

12. Age – candidate for direct recruitment must have attainedthe age of 35 years and must not have attained the age of 45years on the first day of January next following the year in whichthe notice inviting applications is published;

Provided that the upper age limit shall be higher by three years incase of candidates belonging to Scheduled Castes and ScheduledTribes and such other categories as may be notified by theGovernment from time to time.”

A4. On 10 May 2018, an advertisement was issued for directrecruitment to the Uttar Pradesh Higher Judicial Service[2]. The petitionersapplied for selection. The validity of Rule 8(1) was challenged beforethe Allahabad High Court in Gauri Shankar Prasad v RegistrarGeneral, High Court of Judicature at Allahabad[3]. By its judgmentdated 31 May 2018, Division Bench of the High Court noted that theBRules have been upheld by co-ordinate Bench in Suraj Bali Singh vRegistrar General High Court of Judicature at Allahabad[4](“SurajBali Singh”)decided on 8 May 2017. The Division Bench followed itsbinding precedent and held that the petitioner was not entitled to anyrelief. The High Court also observed that nothing prevented the petitionerCfrom appearing in the recruitment process in 2012 and 2016 and hence,it was not open to him to make grievance of being age barred in termsof the advertisement for 2018.

5. In the Special Leave Petition arising from the judgment of theAllahabad High Court, an interim direction was issued on 18 June 2018,Dpermitting the appellant to appear in the preliminary examination for theHigher Judicial Service and for the main examination. The result wasdirected to be kept in sealed cover.

6. Insofar as the petitioner in the proceedings under Article 32 isconcerned[5], an admit card was issued to him to appear in the preliminaryexamination in July 2018 and he was declared to be successful. TheEHigh Court published list of candidates who had obtained qualifyingmarks but could not be allowed to proceed to the next stage. The nameof the petitioner appeared in that list as candidate who is debarred ongrounds of age. The petitioner submitted representation to the HighCourt. Not having found redressal, he moved these proceedings underFArticle 32 of the Constitution of India. The petitioner belongs to reservedcategory 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 petition[6] belongs tothe general category. He too appeared for the preliminary examination,but when the results were declared, it was notified that he was notG

2 UPHJS3 Writ A. No. 13309/2018

4 Writ A. 20708 of 2012

5 WP (C) 1343 of 20196 Writ Petition (C) No. 1382 of 2018 (Devi Dyal Singla v. High Court of Judicature atHAllahabad through Registrar General)

compliant with the age limit prescribed in Rule 12. In the writ petitionsfiled by Hirandra Kumar and Devi Dyal Singla, the constitutional validityof Rules 8(1) and 12 have been called into question. In the accompanyingspecial leave petition in which leave has been granted today, the validityof Rules 8 and 12 has been questioned.

8. The first limb of the submissions urged on behalf of thepetitioners is formulated below:

(i)Under Rule 8, the High Court is required to determine notlater than three years from the last recruitment, the numberof officers to be taken at the next recruitment keeping inview the existing and likely vacancies of the next two years;

(ii)Rule 8 recognises that recruitment to the UPHJS should takeplace at intervals not exceeding three years;

(iii)Rule 12 prescribes that candidate for direct recruitmentshould have attained the age of 35 years and should not havecrossed the age of 45 years on the first day of January,Dfollowing the year in which the notice inviting applications ispublished;

(iv)As result of the operation of Rules 8 and 12, candidatewho has crossed the age limit prescribed between the dateof the last recruitment and the present recruitment processwould be debarred from appearing in the competitiveEexamination;

(v)Candidates who have become debarred by the lapse of threeyears in the interregnum would not be able to appear at theexamination; and

(vi)This constitutes violation of the right to fair and equaltreatment in matters of public employment guaranteed byArticles 14 and 16 of the Constitution of India.Reliance inthis regard has been placed on the judgment of this Courtin Delhi Transport Corporation v. DTC MazdoorCongress[7].

9. The second limb of the submissions is as follows:

(i) By the judgment of this Court in Malik Mazhar Sultan v U.P PublicService Commission[8 ](“Malik Mazhar Sultan”), time schedule hasbeen fixed for filling up vacancies in the cadre of District Judge and forposts in the judicial service of the state;

7 (1991) Supp. 1 SCC 600

8 (2008) 17 SCC 703

A(ii) The time schedule prescribed indicates that vacancies in the HJShave to be filled up on yearly basis;

(iii) In the State of Uttar Pradesh, as result of Rule 8, the recruitmentprocess is scheduled to be carried out at intervals of not more than threeyears;

B(iv) The time schedule which has been prescribed in Malik MazharSultan (supra) is mandatory; and

(v) The cut-off for determining fulfilment of the age criterion must beprescribed with reference to the year in which recruitment must takeplace and hence, the debarment of officers, who have crossed the upperCage limit as result of the operation of Rule 12, is contrary to the decisionof this Court.

10. The third limb of the submissions is that the prescription of anage limit of 45 years (48 years in the case of candidates belonging to theScheduled Caste and Scheduled Tribe category) with reference to thefirst day of January of the year following the year in which the noticeDinviting applications is published, is arbitrary and violative of Article 14of the Constitution.

11. The fourth limb of the argument is that, in determining therequirement of seven years’ standing at the Bar, the advertisement forrecruitment has prescribed the last date fixed for the submission ofEapplication forms as the relevant date. On the other hand, in determiningthe age criterion of 35 years or, as the case may be, 45 years, it is thefirst day of January of the year following the date on which theadvertisement is issued which is adopted. This, it has been submitted,results in discrimination.F12. Opposing this submission, Ms Preetika Dwivedi, learnedcounsel appearing on behalf of the High Court has urged the followingsubmissions:(i)The Rules of 1975 are legislative in character and it is only ina situation of manifest arbitrariness that rule can be held tobe ultra vires;

G(ii) candidate has no fundamental right to assert that vacanciesfor direct recruitment must be filled up every year. The rightof candidate is only to be considered for selection on the basis ofthe Rules as they exist when the selection takes place;

(iii) Rule 8(1) prescribes that recruitment shall take place fromtime to time, but not later than three years from the date ofthe last recruitment. The High Court conducted its recruitmentprocess in 2012, 2014 and 2016 and has been submittingcompliance reports periodically to this Court, which ismonitoring 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 havingparticipated on previous occasions have been held to beunsuccessful, cannot assert violation of their fundamentalrights.

(v) The decision inMalik Mazhar Sultan(supra) clearly specifiesthat the general directions which were issued by this Court toall High Courts to hold recruitment every year is subject tothe Rules of each High Court. In any event, these generaldirections do not vest any enforceable right in candidate;

(vi) The constitutional validity of Rule 8 has been upheld by the HighCourt in the decision in Suraj Bali Singh (supra) against which aspecial leave petition has been dismissed as withdrawn.

(vii) The requirement in Rule 12 that candidate for direct recruitmentmust not have attained the age of 45 years (48 years for SC/STcandidates) on the first day of January of the year following theyear in which the notice inviting applications is published, isreasonable;

(viii)The prescription of cut-off dates falls within the realm of discretionpermissible to an authority which frames subordinate legislation.Similar provisions have been upheld in several decisions of this Courtincluding Dr Ami Lal Bhat v State of Rajasthan and Others[9];

(ix) The validity of Rule 12 has been upheld by the Allahabad HighCourt inSanjay Agarwal v State of U P[10 ](“Sanjay Agarwal”).Similarrules prescribing an age criterion are to be found in the Rules framedby other states, including States of Uttarakhand, Haryana, Rajasthanand Orissa.

13. The rival submissions fall for consideration.

9 (1997) 6 SCC 614

10 (2007) 3 UPLBEC 2558

A14. Rule 6 of the Rules of 1975 prescribes the quota for varioussources of recruitment to the UPHJS. 75% of the posts have to be filledup 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 suitability test by judicial officers ofthe rank of Civil Judge (Senior Division); and (ii) 10% from amongstBCivil Judge (Senior Division) rank officers with not less than five years’service drawn on the basis of merit through limited competitiveexamination. The balance of 25% is to be drawn by direct recruitmentfrom the Bar.

15. Rule 8(1) postulates that the High Court shall from time toCtime, determine the number of officers to be taken at the recruitment,keeping in view the vacancies which then exist and which are likely tooccur in the next two years. Sub-rule (2) of Rule 8, however, prescribesthat if the number of selected direct recruits available for appointment isless than the number decided by the Court from that source, the Courtmay correspondingly increase the number of recruits taken by promotionDfrom the Nyayik Sewa.

16. Under Rule 12, minimum age criterion of 35 years and amaximum age limit of 45 years is stipulated which is relaxable by threeyears for Scheduled Caste and Scheduled Tribe candidates. The agelimit is prescribed with reference to the first day of January of the yearEwhich follows the year in which the notice inviting applications ispublished.

17. The submission which was urged on behalf of the petitionersis based on the decision of this Court in Malik Mazhar Sultan (supra).Whileformulating time schedule for the filling up of vacancies both inFthe Higher Judicial Service and at all other levels in the district judiciary,this Court was cognizant of the fact that recruitment rules are in operationin all the States and Union Territories. Bearing this in mind, this Courtobserved:

“5. Before we issue general directions and the time schedule tobe adhered to for filling vacancies that may arise in subordinateGcourts and District Courts, it is necessary to note that selectionsare required to be conducted by the authorities concerned as perthe existing Judicial Service Rules in the respective States/UnionTerritories. We may, however, note that, progressively, theauthorities concerned would consider, discuss and eventually may

arrive at consensus that the selection process be conducted bythe High Court itself or by the Public Service Commission underthe 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 beensubmitting progressive reports which are monitored by this Court forcompliance. The purpose of the directions in Malik Mazhar Sultan(supra)was to ensure that vacancies in the district judiciary are not leftunfilled over long periods of time, undermining the efficacy of the judicialsystem. Equally, the Court was cognizant of the fact that each HighCourt has its recruitment rules. It is in view of that background that thegeneral implementation of the directions which have been issued is beingcontinuously monitored.

18. The real issue is as to whether the decision in Malik MazharSultan (supra)can be construed as leading to vested right in candidatewho applies for recruitment to the HJS to assert that they may be grantedan age relaxation by virtue of the fact that between the last date ofrecruitment and the current, the candidate has crossed the prescribedage limit.

19. The directions in Malik Mazhar Sultan (supra)are intendedto address the issue of vacancies in the district judiciary. Those directionsdo not override the prevailing rules which govern selections to the HJSin the States and the Union Territories nor do they create an enforceableright in any candidate for selection or to assert right to age relaxationin violation of the rules. So long as the rules hold the field, candidate inorder to be eligible, must fulfil the requirements of age and other conditionswhich are prescribed by the Rules.

20. The submission which has been urged in these proceedings isthat the prescription “of not later than three years” in Rule 8 and of theupper age limit in Rule 12 is ultra vires and arbitrary. The validity of bothRules 8 and 12 has been addressed in decisions rendered by the DivisionBenches of the Allahabad High Court. The constitutional validity of Rule8 has been upheld in Suraj Bali Singh (supra). The same submissionthat has been urged before this Court was considered in that decision bythe Division Bench.

Special Leave Petition against the judgment in Suraj Bali Singh(supra)was withdrawn on 4 August 2017. The validity of Rule 12 hasbeen upheld by another Division Bench of the Allahabad High Court inSanjay Agarwal (supra).

A21. The legal principles which govern the determination of cut-off date are well settled. The power to fix cut-off date or age limit isincidental to the regulatory control which an authority exercises over theselection process. certain degree of arbitrariness may appear on theface of any cut-off or age limit which is prescribed, since candidate onthe wrong side of the line may stand excluded as consequence. That,Bhowever, is no reason to hold that the cut-off which is prescribed, isarbitrary. In order to declare that cut-off is arbitrary and ultra vires, itmust be of such nature as to lead to the conclusion that it has beenfixed without any rational basis whatsoever or is manifestly unreasonableso as to lead to conclusion of violation of Article 14 of the Constitution.C22. Several decisions of this Court have dealt with the issue. In

22. Several decisions of this Court have dealt with the issue. InDr Ami Lal Bhat v. State of Rajasthan[11],a two judge Bench of thisCourt dealt with the provisions contained in the Rajasthan MedicalServices (Collegiate Branch) Rules, 1962. Rule 11(1) prescribed that acandidate for direct recruitment should not have attained the age of 35Dyears on the first day of January following the last date fixed for thereceipt of applications.Rejecting the contention that the cut-off wasarbitrary, this Court held that the fixation of cut-off prescribing maximumor minimum age requirements for post is in the discretion of the rulemaking authority. The Court held thus:

“5. ….In the first place the fixing of cut-off date for determiningEthe maximum or minimum age prescribed for post is not, per se,arbitrary. Basically, the fixing of cut-off date for determiningthe maximum or minimum age required for post, is in thediscretion of the rule-making authority or the employer as thecase may be. One must accept that such cut-off cannot beFfixed with any mathematical precision and in such manner aswould avoid hardship in all conceivable cases. As soon as cut-off date is fixed there will be some persons who fall on the rightside of the cut-off date and some persons who will fall on thewrong side of the cut-off date. That cannot make the cut-offdate, per se, arbitary unless the cut-off date is so wide off theGmark as to make it wholly unreasonable.”

The same view has been adopted in other decisions, includingthose in (i) State of Bihar v Ramjee Prasad[12 ](“Ramjee Prasad”) ;

11 (1997) 6 SCC 614H12 (1990) 3 SCC 368

(ii) Union of India v Sudheer Kumar Jaiswal[13 ](“Sudheer KumarJaiswal”) ; (iii) Union of India v Shivbachan Rai[14 ](“Shivbachan Rai”); and (iv) Council of Scientific and Industrial Research v RameshChandra Agarwal[15 ](“Ramesh Chandra Agarwal”).

23. In Ramjee Prasad (supra), the State issued advertisementsfor the post of Assistant Professors and prescribed 31 January 1988 asthe last date for the receipt of applications. Applicants must have hadthree years of experience. Contending that applicants could not meetthe prescribed requirement of experience by the date prescribed, thecut-off date was challenged as being arbitrary and ultra vires Article 14of the Constitution. two judge Bench of this Court upheld the cut-offdate and held thus:

“8. It is obvious that in fixing the last date as January 31, 1988 theState Government had only followed the past practice and if theHigh Court’s attention had been invited to this fact it would perhapshave refused to interfere since its interference is based on theerroneous belief that the past practice was to fix June 30 of therelevant year as the last date for receipt of applications. Exceptfor leaning on past practice the High Court has not assigned anyreasons for its choice of the date. As pointed out by this Courtthe choice of date cannot be dubbed as arbitrary even if noparticular reason is forthcoming for the same unless it isshown to be capricious or whimsical or wide off thereasonable mark. The choice of the date for advertisingthe posts had to depend on several factors, e.g. the numberof vacancies in different disciplines, the need to fill up theposts, the availability of candidates, etc. It is not the case ofanyone that experienced candidates were not available in sufficientnumbers on the cut-off date. Merely because the respondentsand some others would qualify for appointment if the last date forreceipt of applications is shifted from January 31, 1988 to June30, 1988 is no reason for dubbing the earlier date as arbitrary orirrational.”

(Emphasis supplied)

24. In Sudhir Kumar Jaiswal (supra), the date with referenceto which the age eligibility of person desirous of sitting in the competitiveexamination for recruitment to the Indian Administrative Service/Indian

13 (1994) 4 SCC 212

14 (2001) 9 SCC 35615 (2009) 3 SCC 35

DEF

AForeign Service was fixed as 1 August of every year. The preliminaryexam would normally be held annually before 1 August. Rejecting thecontention that that the cut-off date is arbitrary and hence ultra vires, atwo judge Bench of this Court held thus:

“5. As to when choice of cut-off date can be interfered wasBopined by Holmes, J. in Louisville Gas & Electric Co. v. ClellColeman [277 US 32 : 72 L Ed 770 (1927)] by stating that if thefixation be “very wide of any reasonable mark”, the same can beregarded arbitrary. What was observed by Holmes, J. was citedwith approval by Bench of this Court in Union ofIndia v. Parameswaran Match Works [(1975) 1 SCC 305 : AIRC1974 SC 2349] (in paragraph 10) by also stating that choice of adate cannot always be dubbed as arbitrary even if no particularreason is forthcoming for the choice unless it is shown to becapricious or whimsical in the circumstances. It was further pointedout where point or line has to be, there is no mathematical orDlogical way of fixing it precisely, and so, the decision of thelegislature or its delegate must be accepted unless it can be saidthat it is very wide of any reasonable mark.

6. The aforesaid decision was cited with approval in D.G. Gouseand Co. v. State of Kerala [(1980) 2 SCC 410 : AIR 1980 SC271] ; so also in State of Bihar v. Ramjee Prasad [(1990) 3 SCCE368] …

7. In this context, it would also be useful to state that when acourt is called upon to decide such matter, mere errors are notsubject to correction in exercise of power of judicial review; it isonly its palpable arbitrary exercise which can be declared to beFvoid…

8. …As to why the cut-off date has not been changed despite thedecision to hold preliminary examination, has been explained inparagraph 3 of the special leave petition. The sum and substanceof the explanation is that preliminary examination is only screeningGtest and marks obtained in this examination do not count fordetermining the order of merit, for which purpose the marksobtained in the main examination, which is still being held after 1stAugust, alone are material. In view of this, it cannot be held thatcontinuation of treating 1st August as the cut-off date, despite theUnion Public Service Commission having introduced the methodHof preliminary examination which is held before 1st August, can

be said to be “very wide off any reasonable mark” or so capriciousor whimsical as to permit judicial interference.”

25. In Shivbachan Rai (supra), the Union Public ServiceCommission advertised for direct recruitment to the post of AssistantDirector in the Central Poultry Breeding Farms and prescribed an agelimit of 35 years as on 31 May 1990 with relaxation of five years forgovernment servants. The earlier notification did not provide limitationon the age relaxation. The five-year stipulation was challenged as beingarbitrary and ultra vires. two judge Bench upheld the notification andheld thus:

“6. …Prescribing of any age limit for given post, as alsodeciding the extent to which any relaxation can be given ifan age limit is prescribed, are essentially matters of policy.It is, therefore, open to the Government while framing rules underthe proviso to Article 309 of the Constitution to prescribe suchage limits or to prescribe the extent to which any relaxation canbe given. Prescription of such limit or the extent of relaxation tobe given, cannot be termed as arbitrary or unreasonable. Theonly basis on which the respondent moved the CentralAdministrative Tribunal was the earlier Rules of 1976 under which,though an age limit was prescribed, limit had not been placed onthe extent of relaxation which could be granted. If at all any chargeof arbitrariness can be levied in such cases, not prescribing anybasis for granting relaxation when no limit is placed on the extentof relaxation, might lead to arbitrariness in the exercise of powerof relaxation...”(Emphasis supplied)

26. In Ramesh Chandra Agarwal (supra), the Council of Scientificand Industrial Research framed scheme for the absorption ofresearchers working in their laboratories and institutes following thedirections of this Court. It was prescribed that eligible applicants musthave 15 years of continuous research on 2 May 1997. The Director wasconferred powers to relax the requirement. Contending that that thetenure of researchers is ordinarily 13 years, the prescription of 15 yearswas challenged as being ultra vires and arbitrary. This contention wasaccepted by the High Court. On appeal, two judge Bench of this Courtexamined the scheme and applicable avenues to researchers. Notingthat there was no ceiling of 13 years on researchers, this Court upheldthe prescription of 15 years and the cut-off date. The Court held thus:

A“29. ”State” is entitled to fix cut-off date. Such decisioncan be struck down only when it is arbitrary. Its invalidationmay also depend upon the question as to whether it has arational 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 whenBthis Court directed the appellants to consider framing of aregularisation scheme. They could have picked up any other date.They could have even picked up the date of the judgment passedby the Central Administrative Tribunal. As rightly contended byMr Patwalia, by choosing 2-5-1997 as the cut-off date, no illegalityCwas committed. Ex facie, it cannot be said to be arbitrary.

30. The High Court, however, proceeded on the basis that thecut-off date should have been the date of issuance of thenotification. The employer in this behalf has choice. Itsdiscretion can be held to be arbitrary but then the HighDCourt only with view to show sympathy to some of thecandidates could not have fixed another date, only becauseaccording to it, another date was more suitable. In law itwas not necessary. The Court’s power of judicial review inthis behalf although exists but is limited in the sense thatthe impugned action can be struck down only when it isEfound to be arbitrary. It is possible that by reason of such acut-off date an employee misses his chance very narrowly.Such hazards would be there in all the services. Onlybecause it causes hardship to few persons or section ofthe employees may not by itself be good ground forFdirecting fixation of another cut-off date.”

(Emphasis supplied)

27. These judgments provide clear answer to the challenge.The petitioners and the appellant desire that this Court should roll-backthe date with reference to which attainment of the upper age limit of 48years should be considered. Such an exercise is impermissible. In orderGto indicate the fallacy in the submission, it is significant to note that Rule12 prescribes minimum age of 35 years and an upper age limit of 45years (48 years for reserved candidates belonging to the Scheduled Castesand Tribes). Under the Rule, the age limit is prescribed with referenceto the first day of January of the year following the year in which theHnotice 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 istrue that some candidates who have crossed the upper age limit underRule 12 may become eligible. But, interestingly that would affectcandidates who on the anterior date may not have attained the minimumage of 35 years but would attain that age under the present Rule. Weare adverting to this aspect only to emphasise that the validity of theRule cannot be made to depend on cases of individual hardship whichinevitably arise in applying principle of general application. Essentially,the determination of cut-off dates lies in the realm of policy. court inthe exercise of the power of judicial review does not take over thatfunction for itself. Plainly, it is for the rule making authority to dischargethat function while framing the Rules.28. We do not find any merit in the grievance of discrimination.For the purpose of determining whether member of the Bar has fulfilledthe requirement of seven years’ practice, the cut-off date is the last datefor the submission of the applications. For the fulfillment of the agecriterion, the cut-off date which is prescribed is the first day of Januaryfollowing the year in which 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 ofArticle 233(2) of the Constitution. The prescription of an age limit of 45years, or as the case may be, of 48 years for reserved categorycandidates, is in pursuance of the discretion vested in the appointingauthority to prescribe an age criterion for recruitment to the HJS.

29. For the same reason, no case of discrimination or arbitrarinesscan be made out on the basis of facial comparison of the Higher JudicialService Rules, with the Rules governing Nyayik Sewa. Both sets ofrules cater to different cadres. case of discrimination cannot be madeout on the basis of comparison of two sets of rules which governdifferent cadres.

30. For the above reasons, we hold that there is no merit in thechallenge to the constitutional validity of Rules 8 and 12. We concurwith the reasoning of the High Court in upholding Rules 8 and 12 in thejudgments noted earlier.

31. In the alternative, it has been urged on behalf of the petitionersthat since they have been granted permission to appear at theexaminations in pursuance of the interim directions that were issuedduring the pendency of these proceedings, the Court may exercise itsjurisdiction under Article 142 of the Constitution of India to direct thatthe results be declared.

A32. We are unable to accede to that request. For one thing, therewould be other candidates who have not approached this Court and whowould have been in the same position of not meeting the age criterion.Moreover, allowing group of candidates to breach the age criterion bytaking recourse to the power under Article 142 of the Constitution ofIndia would, in our view not be appropriate inviting, as it does, breachBof 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 RegistrarGeneral[16],dated on 19 July 2018 is distinguishable. While taking recourseto the power vested in this Court under Article 142 of the Constitution ofCIndia, two Judge Bench of this Court had observed that the order waspassed in the peculiar facts and circumstances and shall not be treatedas precedent. Moreover, in that case, the results had already beendeclared which was consideration which weighed with the Court intaking 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 sufficientopportunities in the past to appear for the HJS examinations at timewhen they were within the age limit. Having not succeeded in that, theirattempt at moving this Court to seek relaxation of the Rules or througha challenge to the Rules, is misconceived.

35. For the above reasons, we find no merit in the writ petitions orin 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.

H16 Writ Petition (Civil) No. 594/2016