Allahabad High Court
Vikram Singh 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. - 2939 of 2021
Petitioner :- Vikram Singh
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.
By this writ petition, a challenge is made to Rule 12 of the Uttar Pradesh Higher Judicial Service Rules, 1975 (in short the "Rules of 1975"). It provides for maximum and minimum age for selection as on first day of January next following the year in which the notice inviting applications is published for filling up the vacancy under the Rules of 1975. A challenge to the advertisement dated 17.12.2020 to provide the relevant age as on 01.01.2021 has also been made.
Learned counsel for the petitioner submits that after the recruitment in the year 2018, there was no recruitment in the year 2019 and now the recruitment would be pursuant to the advertisement issued in the year 2020. If the advertisement could have been issued even in the year 2019 to fill up the post, the petitioner would have been within age limit but due to delay in holding the recruitment, he became over age.
Rule 12 of the Rules of 1975 fixing first January of the following year of the advertisement is thus unconstitutional, hence be struck down.
The issue raised before us has been answered by the Supreme Court recently in the case of Hirandra Kumar vs. High Court of Judicature at Allahabad and Another 2019 SCC Online SC 254. There also the writ petition was filed to challenge the constitutional validity of Rule 12 of the Rules of 1975 apart from Rule 8 of the Rules of 1975. The very same challenge and the prayer was not accepted by the Apex Court. Paras 19, 20, 21, 30 to 33 of the said judgment are quoted here under for ready reference :
"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.
20. 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.
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.
...
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."
32. 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.
33. For the above reasons, we hold that there is no merit in the challenge to the constitutional validity of Rules 8 and 12. We concur with the reasoning of the High Court in upholding Rules 8 and 12 in the judgments noted earlier."
In view of the judgment of the Apex Court on the same issue, we are unable to accept the prayer made by the petitioner for challenge to Rule 12 of the Rules of 1975 so as para 2 of the advertisement in respect of the age.
The writ petition accordingly, fails and is dismissed.
Order Date :- 17.2.2021
KA
