Suraj Bali Singh And Others vs Registrar General High Court Of ...
2017 Latest Caselaw 240 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 39
 

 
Case :- WRIT - A No. - 20708 of 2012
 

 
Petitioner :- Suraj Bali Singh And Others
 
Respondent :- Registrar General High Court Of Judicature At Allahabad And
 
Counsel for Petitioner :- H.P. Pandey,J.J. Munir,K.G. Mishra
 
Counsel for Respondent :- C.S.C.,Manish Goyal
 

 
Hon'ble Dilip Gupta,J.

Hon'ble Vinod Kumar Misra,J.

The three petitioners responded to an advertisement dated 18 March 2012 issued by the High Court for conducting direct recruitment to the Uttar Pradesh Higher Judicial Service against 78 vacancies. The advertisement invited applications from Advocates of not less than 7 years standing who must have attained the age of 35 years and must not have attained the age of 45 years as on 1 January 2013. All the three petitioners were more than 45 years of age as on 1 January 2013 and, therefore, were not eligible. This petition was, accordingly, filed for quashing the notification dated 18 March 2012, insofar as it relates to the age bar. Subsequently, an amendment application was filed for declaring Rule 8(i) of the U.P. Higher Judicial Service Rules 19751 which deals with number of appointment to be made and Rule 12 which deals Age as ultra vires Article 14 of the Constitution. The amendment application was allowed. However, at the time of hearing of the writ petition, petitioner No.12, who has appeared in person, submitted that the challenge is restricted to Rule 8(1) only.

An interim order was passed in this petition on 1 June 2012 that if the petitioners are otherwise qualified and had filled up their applications but were not accepted because of being overage, they shall be permitted provisionally to appear in the preliminary examination scheduled to be held on 30 June 2012. The interim order was restricted, however, to only those petitioners who satisfied the age requirement in the year 2011.

It has been stated that only the first petitioner was able to qualify and so the petition has been pressed by the first petitioner only.

The date of birth of the first petitioner is 3 August 1967 and he was enrolled with the Bar Council of Uttar Pradesh on 31 July 1994. The advertisement that was published in the Newspapers on 18 March 2012 for direct recruitment to the Uttar Pradesh Higher Judicial Service provided that Advocates of not less than 7 years standing as on 1 January 2013 who must have attained the age of 35 years and must not have attained the age of 45 years as on 1 January 2013 could submit their applications online from 1 April 2012 to 30 April 2012. The first petitioner was more than 45 years of age as on 1 January 2013 and, therefore, was not eligible.

The first petitioner who has appeared in person submitted that prior to the advertisement that was published on 18 March 2012 for direct recruitment, the last recruitment was made in the year 2009 for filling up vacancies existing in 2009 and anticipated vacancies of the year 2010 but no selection was made for the vacancies existing in the year 2011. The submission is that it was incumbent on the High Court to have issued an advertisement in 2011 in view of the directions given by the Supreme Court on 4 January 2007 in Malik Mazhar Sultan and Another v. U.P. Public Service Commission & Others3 and since no advertisement had been issued in 2011, the first petitioner should be considered eligible against the 2011 vacancies since he was eligible on 1 January 2012. Rule 8(1) of the 1975 Rules is, therefore, sought to be challenged as being ultra vires Article 14 of the Constitution.

Sri Manish Goyal, learned counsel appearing for the High Court, however, submitted that the petitioner was not eligible to appear at the examination conducted in 2012 since he did not satisfy the age requirement provided for under Rule 12. Learned counsel has placed before the Court the order dated 31 March 2011 passed by the State Government, the Application filed by the High Court in the Supreme Court and the order passed by the Supreme Court to explain why the High Court could not conduct any examination in the year 2011. Learned Counsel also submitted that Rule 8 (1) cannot be said to be ultra vires Article 14 of the Constitution.

We have considered the submissions advanced by the first petitioner and the learned counsel for the respondents.

In order to appreciate the contentions, it would be appropriate to refer to the relevant provisions of the 1975 Rules. Rule 5 deals with sources of recruitment and provides that recruitment to the services shall be made :-

"(a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test;

(b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service; and

(c) by direct recruitment from amongst the Advocates of not less than seven years standing on the first day of January next following the year in which the notice inviting applications is published."

Rule 8 deals with number of appointments to be made and is as follows:-

"(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."

Rule 12 deals with Age and is as follows:-

"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 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."

The procedure for direct recruitment is contained in part IV of the 1975 Rules. In the present case, the dispute is regarding recruitment from amongst the Advocates of not less than 7 years standing on the first date of January next following the year in which the notice inviting applications is published.

The notice was published on 18 March 2012 and the relevant portion is as follows :-

"Applications for direct recruitment against 78 vacancies in the Uttar Pradesh Higher Judicial Service (SC-16, ST-02 and OBC-21, Unreserved - 39) in the pay scale of Rs. 51550-1230-58930-1380-63070 are invited from Advocates of not less than 7 years standing on 01.01.2013, who must have attained the age of 35 years and must not have attained the age of 45 years as on 01.01.2013. Age limit shall be higher by 3 years in case of candidates belonging to SC/ST/OBC. There shall be 20% horizontal reservation for women.

The application shall be filled online (www.allahabadhighcourt.in) from 1st April, 2012 to 30th April, 2012 till 23.59 hours after which the link will be disabled.

A Preliminary Examination (objective) is to be held on 30.06.2012 at Allahabad and only those candidates shall be called to appear in the Main Written Examination who secure 50% or more marks in the Preliminary Examination provided candidates not more than 20 times of number of vacancies category-wise i.e. separately for General, Scheduled Castes, Scheduled Tribes and Other Backward Classes shall be admitted to the Main Written Examination. The candidates securing 50% or above in the Main Written Examination shall be called to appear in the interview."

The date of birth of the first petitioner is 3 August 1967. The first petitioner was admittedly more than 45 years of age as on 1 January 2013. There is, therefore, no dispute that the first petitioner did not satisfy the age requirement. The contention of the first petitioner is that the High Court had to conduct recruitment process every year in terms of the decision rendered by the Supreme Court on 4 January 2017 in Malik Mazhar Sultan and if examination was held in 2011, the petitioner would have been permitted to appear since he was more than 35 years and and less than 45 years of age as on 1 January 2012. The submission, therefore, is that the petitioner cannot be considered ineligible to appear at the 2012 examination only because of age requirement if the High Court itself did not conduct the examination in 2011. The first petitioner pointed out that the vacancies of 2009 existing upto 21 December 2010 were considered in the advertisement that was issued in 2009 and for the vacancies that occurred in 2011, no selection was made. It was, therefore, necessary for the High Court to permit the first petitioner to appear in the 2012 examination as the vacancies had occurred in 2011.

A detailed counter affidavit has been filed by the High Court. It has been stated that while computing the vacancies in the 2012 advertisement, the High Court had taken into consideration the existing vacancies as also vacancies upto 31 December 2013. It has also been stated that an order dated 31 March 2011 was passed by the State Government that no fresh recruitment should be made till such time as all the appointments made in the Fast Track Courts are adjusted. It is for this reason that and IA No. 109 was filed by the High Court in Malik Mazhar Sultan. These facts have been stated in paragraph Nos. 13 to 18 of the Counter Affidavit filed in the writ petition and they are reproduced below:-

13. That in so far as not holding the recruitment in 2010 and 2011 is concerned, it is pertinent to mention here that in the report of the Hon'ble Selection and Appointment Committee computing the vacancies arising upto 2013 took into account backlog vacancies of the year 2000 and 2009 alone. Regard may be had to the fact that the recruitment undertaken in 2009 took into consideration the vacancies arising upto 31.12.2010 also In sofaras the vacancies for the year 2011 are concerned, the same have been included post the clearance of the recruitment process by the Hon'ble Supreme Court of India vide its order dated 19.10.2011.

It is further not out of place to mention here that in the interregnum the State Government had passed an order dated 31.03.2011 providing that no fresh recruitment would be made till such time as all appointments made to Fast Track Courts had been adjusted. Since the aforesaid order of the State Government placed a fetter upon the power of the Hon'ble Court to make further appointments, it filed IA No. 109 in Civil Appeal No. 10867 of 2006 Malik Mazhar Sultan and Others Vs. UPPSC and others. The said I.A. came to be allowed by the Hon'bel Supreme Court only on 9.10.2011. It was on the aforesaid date that the Hon'ble Supreme Court directed the Hon'ble High Court to forthwith initiate the process of filling up the vacant post in I.A. ignoring the letter dated 31.03.2011 issued by the Government of U.P. A copy of the order of the Hon'ble Supreme Court dated 19.10.2011 is being annexed to this counter affidavit and marked as Annexure CA-1.

14. That the answering respondent, therefore, submits that it cannot be said that non holding of recruitment exercise in 2010-2011 was an arbitrary decision or one which was not based on any reason.

15. That the other issue which has been raised in the instant writ petition and those connected with it is an alleged violation of the directions issued by the Hon'ble Supreme Court in Malik Mazhar Sultan Vs. UPPSC and others.

In this connection the attention of this Hon'ble Court is firstly invited to the I.A. No. 109/2011 which was moved in the aforesaid Civil Appeal by the High Court and upon which the Hon'ble Supreme Court was pleased to grant permission to the Hon'ble Court to initiate the recruitment process. A copy of the I.A. No. 109 of 2011 is being annexed to this counter affidavit and marked as Annexure CA-2.

16. That a perusal of the aforesaid IA would establish that one of the prayers made there was to vary / extend the timetable as set out by the Hon'ble Supreme Court in its order dated 4.1.2007 passed in the aforesaid Civil Appeal.

It was this IA which was allowed by the Hon'ble Supreme Court on 19.10.2011 and therefore the answering respondent would submit that there is no violation of the directions of the Hon'ble Supreme Court passed in Malik Mazhar Sultan and others and even otherwise the recruitment enjoys the express sanction of the Supreme Court of India.

17. That the attention of this Hon'ble Court is also invited to the compliance report filed by the Hon'ble Court before the Hon'ble Supreme Court in the case of Malik Mazhar Sultan and a copy of the compliance report and affidavit dated 8.12.2011 is being annexed to this counter affidavit and marked as Annexure CA-3.

18. That more fundamentally the answering respondent invites the attention of this Hon'ble Court to the order dated 4.1.2007 passed in the case of Malik Mazhar Sultan and others by the Hon'ble Supreme Court. As would be evident from a reading of the aforesaid order, it is clearly recorded therein that irrespective of the general directions being issued, the selections are to be conducted in accordance with the existing Judicial Service Rules of the respective States / Union Territories. The judgment / order of the Hon'ble Supreme Court did not override the provisions of the Rules of 1975 and for this reason also, it cannot be said that the Hon'ble High Court has acted in contravention of the direction of the Hon'ble Supreme court rendered in the matter of Malik Mazhar Sultan. A copy of the order of the Hon'ble Supreme Court dated 4.1.2007 is being annexed to this counter affidavit and marked as Annexure CA-4."

The said IA No.109 was filed in the Supreme Court in July 2011 with the following prayers:

"i) direct the Respondent State of Uttar Pradesh to modify the Government Order No.552VII-Nyay-2-2011-40G/-01 dated 31.03.2011 (Annexure A-2) suitably in conformity with the direction of the Hon'ble Supreme Court dated 04.01.2007 (Annexure A-1) as well as the U.P. Higher Judicial Service Rules, 1975.

ii) vary/extend the time schedule as mentioned in the order dated 04.01.2007 in the aforesaid Appeal (Annexure A-1) for compliance of the recruitment for U.P. HJS Exam 2011.

iii) pass such other or further orders as may be deemed fit and proper in the facts and circumstances of the case in the interest of justice."

The Supreme Court passed the following order on the said application on 19 October 2011:

" I.A. NO.109 IN C.A. NO. 1867/2006

Since admittedly with effect from 1st April, 2011, no fast track courts are functioning in the State, prima facie, the prayer made in the application cannot be granted. However, learned counsel appearing for the State of Uttar Pradesh prays for some time to seek instructions whether 156 additional posts of Additional District & Sessions Judges, created as ex-cadre Supernumerary post on temporary basis with effect from 1st April, 2011 could be converted into regular posts in the said cadre.

Call the application on 9th November, 2011.

In the meantime, we request the High Court to forthwith initiate the process for filling up all the vacant posts in the cadre of District Judge (Direct), ignoring letter No.552/VII-Nyay- 2-2011-40G/01 dated 31st March, 2011 written by the Principal Secretary, UP Government to the Registrar General of the Allahabad High Court."

Subsequently, on 24 November 2011, the following order was passed by the Supreme Court :

"Re: State of Uttar Pradesh

Learned counsel appearing for the High Court prays for some time to file affidavit indicating the status of the vacancies and steps taken to fill up these vacancies in all the cadres in the Subordinate Judiciary. Let the needful be done within two weeks.

List on 14th December 2011 at 2:00 p.m."

A compliance affidavit was filed by the High Court and taking note of this compliance affidavit, the Supreme Court passed the following order on 14 December 2011:

"Re: State of Uttar Pradesh

As per affidavit dated 8th December, 2011, filed on behalf of the High court, the vacancy position as also the steps taken to fill up the vacancies in the subordinate judiciary has been stated thus:

1. Civil Judge (Junior Division):

Requisition for filling up of 76 vacancies, which are likely to occur as on 30th June, 2012 has already been sent to the State for appropriate direction to the U.P. Public Service Commission to initiate process for filling up these vacancies. We are confident that the Public Service Commission would take necessary steps for the said recruitments expeditiously.

2. Civil Judge (Senior Division):

The recommendations made by the Selection and Appointment Committee for promotion of 61 Civil Judges (Junior Division) to the cadre of Civil Judge (Senior Division) on 7th July, 2011, has been given effect to. Learned counsel appearing for the High Court states that in all 64 appointments to the said cadre have already been made.

3. District Judge:

There are 68 vacancies (27 current + 41 carried forward backlog) falling to the quota of direct recruits. It is stated that further steps to fill up the said vacancies could not be taken as the State Government vide Government Order ("G.O.") dated 31st March, 2011 had stopped recruitment in U.P. Higher Judicial Service till officers working in Fast Track Courts (156 numbers) were absorbed in the regular cadre as and when vacancies were to arise. Since the operation of the said G.O. has already been stayed by this Court vide order dated 19th October, 2011, we request the High Court to take necessary steps to fill up the said vacancies expeditiously. As against 27 vacancies falling to the quota of Limited Competitive Examination (accelerated promotion) only 3 vacancies could be filled up as 95 candidates who had appeared in the examination could not secure the minimum qualifying marks.

However, we find that insofar as filling up of 54 vacancies falling to the share of promotees is concerned, there is no indication as to why the same are still lying vacant. We request the High Court to initiate the process to fill up these posts as well, as expeditiously as practicable.

List the case for further orders on 2nd February, 2012 at 3.00 p.m.

I.A. NO.109 in C.A. NO. 1867 OF 2006

Taken on board.

In view of our order dated 19th October, 2011, this application is rendered infructuous and is dismissed accordingly."

(emphasis supplied)

It is thereafter that the High Court issued the advertisement on 8 March 2012 inviting applications for direct recruitment against 78 vacancies in the U.P. Higher Judicial Service. The advertisement required that applications could be filed by Advocate not less than 7 years standing as on 1 January 2013 and such applicants must also have attained the age of 35 years and must not have attained the age of 45 years as on 1 January 2013. Admittedly, the first petitioner did not satisfy this requirement of age as he was more than 45 years of age. The contention of the first petitioner is that since vacancies existed in 2011 but no advertisement was issued by the High Court, age requirement for the first petitioner should be taken as on 1 January 2012 not 1 January 2013.

It is not possible to accept the contention of the first petitioner. Reasons had been indicated by the High Court in the counter affidavit for not issuing any advertisement in 2011. The State Government had sent a letter dated 31 March 2011 asking the High Court not to hold fresh recruitment till such time as appointments made in the Fast Track Courts were adjusted. It is for this reason that the High Court had filed I.A. No.109 in Malik Mazhar Sultan seeking directions for modification of the Government Order dated 31 March 2011 and for extension of the time schedule in conducting the recruitment. The Supreme Court on 19 October 2011 observed that the High Court should forthwith initiate the process for filling up the vacant posts by ignoring the letter dated 31 March 2011 sent by the State Government. On 24 November 2011, the Supreme Court granted time to the High Court to indicate the status of the vacancies and the steps taken to fill up the vacancies. A compliance affidavit was filed by the High Court and the Supreme Court passed a detailed order on 14 December 2011 requiring the High Court to initiate the process for filling up the posts. The advertisement was thereafter issued in March 2012.

It has also been contended by learned counsel for the High Court that even the order dated 4 January 2007 passed by the Supreme Court in Malik Mazhar Sultan directed that the selections should be held as per the existing Judicial Service Rules in the respective States. The contention is that the recruitment has been conducted in accordance with the 1975 Rules.

Rule 8 of the 1975 Rules deals with number of appointments to be made. It provides that the Court shall, from time to time but not later than three years from the last recruitment, fix the number of vacancies to be filled at the recruitment keeping in view the existing vacancies and those likely to occur in the next two years. There has been no violation of this Rule and in any case, the first petitioner has not been able to substantiate as to how this Rule violates the provisions of Article 14 of the Constitution.

The first petitioner has not pressed the challenge to Rule 12. The advertisement that was issued by the High Court in 2012 was in accordance with the age requirement prescribed in Rule 12. The first petitioner had appeared at the 2009 Examination but could not qualify. If no advertisement was issued in 2011, it was for the first petitioner to have approached the Court in time or to have moved an appropriate application in the matter pending before the Supreme Court. The High Court did move an application in the matter pending before the Supreme Court in Malik Mazhar Sultan and orders were passed, whereafter the advertisement was issued on 8 March 2012.

The first petitioner was, therefore, clearly not eligible to appear at the examination. Thus, no relief can be granted to the first petitioner.

The writ petition is, accordingly, dismissed.

Order Date :- 8.5. 2017

Akram

(Dilip Gupta,J.)

(Vinod Kumar Misra,J.)