Allahabad High Court
Rakesh Tiwari vs State Of U.P. And 2 Others on 17 February, 2021
Bench: Munishwar Nath Bhandari, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- WRIT - A No. - 2938 of 2021
Petitioner :- Rakesh Tiwari
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Manju Pandey
Counsel for Respondent :- C.S.C.,Ashish Mishra
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Rohit Ranjan Agarwal,J.
Heard learned counsel for the petitioner and Sri Rahul Agarwal, learned counsel for the respondents.
The writ petition has been filed to challenge clause (2) of the advertisement dated 17.12.2019. It is pertaining to age.
Learned counsel for the petitioner submit that as per Rule 12 of Uttar Pradesh Higher Judicial Service Rules, 1975 (in short "Rules of 1975"), petitioner is eligible to appear in the selection but due to criteria given in the advertisement contrary to Rule 12, he may be barred. It is for the reason that his date of birth is 05.05.1975 and would be above 45 years as on 01.01.2021. Thus interference in the clause of age given in the advertisement be made.
We have considered the submissions made by counsel for the petitioner, Sri Rahul Agrawal, learned counsel for respondents and perused the record.
Rule 12 of the Rules of 1975, as amended, are quoted hereunder :
"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."
As per the rule, one 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. The petitioner being General category candidate, he would be over aged on 01.01.2021. It is for the reason that he would be attaining the age of 45 years as on 01.01.2021 and thus not entitled for appearing in the selection as per rule 12 of the Rules of 1975, as amended.
Constitutional validity of Rule 8 (1) and 12 of the Rules of 1975 was challenged before the Supreme Court in Hirendra Kumar Vs. High Court of Judicature at Allahabad and others, 2019 SCC Online SC 254, wherein the Apex Court while upholding the validity of the Rules of 1975 held as under;
"19. 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.
21. 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.
22. 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).
23. 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.
30. 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 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.
31. 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."
In view of the above, we find no force for challenge to the clause of 'age' given in the advertisement as being in consonance to Rule 12 of Rules of 1975, the same having been upheld by the Apex Court in case of Hirendra Kumar (Supra).
Writ petition accordingly fails and is dismissed.
Order Date :- 17.2.2021
Shekhar
