HIRANDRA KUMAR v. JANUARY 29

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 HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT ALLAHABAD & ANR. 611 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. A B C D E F G H 612 SUPREME COURT REPORTS [2019] 2 S.C.R. A B C D E F G H 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 (2008) 17 SCC 703 referred to [1997] 1 Suppl. SCR 543 relied on (2007) 3 UPLBEC 2558 approved [1990] 2 SCR 468 (1994) 4 SCC 212 (2001) 9 SCC 356 [2008] 17 SCR 1378 relied on relied on relied on relied on Para 8 Para 9 Para 12 Para 12 Para 22 Para 22 Para 22 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. HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT ALLAHABAD & ANR. 613 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 A B C D E F G H 614 SUPREME COURT REPORTS [2019] 2 S.C.R. A B C D E F G H

#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) HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT ALLAHABAD [DR. DHANANJAYA Y CHANDRACHUD, J.] 615 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 A B C D E F G H 616 SUPREME COURT REPORTS [2019] 2 S.C.R. (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; A B C D E F G H HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT ALLAHABAD [DR. DHANANJAYA Y CHANDRACHUD, J.] 617 (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 A B C D E F G H 618 SUPREME COURT REPORTS [2019] 2 S.C.R.

#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 A B C D E F G H HIRANDRA KUMAR v. HIGH COURT OF JUDICATURE AT ALLAHABAD [DR. DHANANJAYA Y CHANDRACHUD, J.] 619 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). A B C D E F G H 620 SUPREME COURT REPORTS [2019] 2 S.C.R. A B C D E F G H

#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”) ;