Allahabad High Court
Birjesh Kumar Kashyap And 4 Others vs High Court Of Judicature At Allahabad ... on 31 May, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:100380-DB
Court No. - 39
Case :- CIVIL MISC REVIEW APPLICATION No. - 258 of 2024
Applicant :- Birjesh Kumar Kashyap And 4 Others
Opposite Party :- High Court Of Judicature At Allahabad And Another
Counsel for Applicant :- Anupama Tripathi,Rajesh Mishra,Rakesh Kumar Tripathi
Counsel for Opposite Party :- Ashish Mishra
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Shri Rajesh Mishra, learned counsel for the petitioners-applicants and Shri Ashish Mishra, learned counsel for the respondent.
2. Present review application has been filed arising from the order dated 3.4.2024. The present petitioners-applicants appealed against the above order to the Supreme Court in Special Leave to Appeal (C) No. 12077/2024 (Brijesh Kumar Kashyap & Ors. vs The High Court of Judicature at Allahabad & Ors.). It was dismissed by order dated 21.05.2024 on the following terms:
"1. After hearing progressed to some length, learned counsel for the petitioner seeks leave to withdraw the special leave petition. He also seeks leave to pursue his remedy before the jurisdictional High Court.
2. Permission granted.
3. The special leave petition, accordingly, stands dismissed as withdrawn.
4. This order shall not preclude the petitioners to apply for a review of the order dated 03rd April, 2024, if so advised.
5. If the review application is dismissed, we protect the right of the petitioner(s) to approach this Court once again by challenging the order dated 03rd April, 2024."
3. Hence this Review Application.
4. The earlier order of the Court dated 3.4.2024 was passed solely on the basis of still earlier decision of this Court in Writ - A No. 5137 of 2024 (Brijesh Kumar Kashyap & 6 Ors. vs The High Court of Judicature At Allahabad & Anr.), Neutral Citation No. - 2024:AHC:57156-DB.
5. In turn, the decision in Brijesh Kumar Kashyap (supra) was based on still earlier decision of this Court in Writ - A No. 3376 of 2024 (Vikas Kumar Verma & Anr. Vs. State of U.P. & 2 Ors.), Neutral Citation No.- 2024:AHC:38703-DB. The material part of the said decision reads as below:
2. This petition has been filed seeking following relief:-
(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 02.11.2023 and 17.11.2023 (Annexure No.1 & 2 respectively) passed by the respondents No.2 rejecting the application dated 28.09.2023 of petitioner No.2 and application dated 21.10.2023 of petitioner No.1 for permitting them to participate in the direct recruitment to the Uttar Pradesh Higher Judicial Service, 2023 by granting age relaxation to the petitioners.
(ii) Issue writ, order or direction in the nature of mandamus directing the respondents to accept the application form submitted by the petitioner for direct recruitment to The Uttar Pradesh Higher Judicial Service, 2023 and grant age relaxation to the petitioners by treating the vacancy of U.P.H.J.S for recruitment year 2021-22 expeditiously as possible as within stipulated time period fixed by this Hon'ble Court".
3. Learned counsel appearing on behalf of petitioner has submitted that as per rules, the respondents have not conducted examination in 2022, the last examination happened in the year 2020 and hence, they have not made recruitment continuously as directed by the Apex Court in Malik Mazhar Sultan (3) Vs. U.P. Public Service Commission, (2008) 17 SCC 703.
4. In view of the said circumstances, the respondents ought to have extended the upper age limit by relaxing the age limit. Despite the efforts made by the petitioner without considering the application the authority concerned have rejected the application by order dated 07.11.2023 without any reason.
5. Learned counsel appearing on behalf of respondents no.2 and 3, on instructions has submitted that issue was already covered by the orders of the Apex Court in Hirandra Kumar Vs. High Court of Allahabad (2020) 17 SCC 401. Identical issues has been considered by the Apex Court and rejected the case of the petitioner. He has relied upon the observations made in Paragraphs No.17, 18, 19, 20, 21, 28, 29, 34 which is quored hereinunder:-
"17. The directions which have been issued in Malik Mazhar Sulatan Vs. U.P. Police Service Commission (2008) 17 SCC 703 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 times, 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 of 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 no 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 Vs. High court of Allahabad 2017 SCC OnLine All 1287. 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 04.08.2017. The validity of Rule 12 has been upheld by another Division Bench of the Allahabad High Court in Sanjay Agarwal Vs. State of U.P. 2007 SCC OnLine All 1554.
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.
28. 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 fulfilment of the age criterion, the cu-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 candidates, is in pursuance of the discretion vested in the appointing authority to prescribe an age criterion for recruitment to the HJS.
29. 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.
34. In the facts and circumstances of the present batch of cases, we see no reason or justification to interfere. The petitioners had sufficient opportunities in the past to appear for the HJS examinations at a time when they were within the age-limit. Having not succeeded in that, their attempt at moving this Court to seek a relaxation of the Rules or through a challenge to the Rules, is misconceived."
6. Considering the above circumstances and observations made by the Apex Court cited above, nothing survives in the present writ petition. Accordingly, the present writ petition is dismissed."
6. Referring to the observation made by the Supreme Court in its order dated 21.5.2024 (noted above), it has been submitted, the present Review Application is maintainable. In view of that observation made by the Supreme Court, we have entertained the present Review Application as otherwise, in absence of challenge to the decision in Vikas Kumar Verma (supra), the order dated 3.4.2024 was passed solely on the statement made by learned counsel for the petitioners.
7. As to the merits, learned counsel for the petitioners-applicants would submit, the earlier decision of the Court in Vikas Kumar Verma (supra) is contrary to the decision of the Supreme Court in High Court of Delhi Vs. Devina Sharma, (2022) 4 SCC 643. Referring to the same, it has been submitted, age relaxation had been granted by a judicial order passed by the Delhi High Court in the context of Delhi Higher Judicial Service Examination 2022. That was challenged before the Supreme Court. Referring to the discussion made in paragraphs 17, 18 & 19 of the said decision, it has been submitted, after considering its earlier decision in Hirandra Kumar Vs. High Court of Judicature at Allahabad & Anr., (2020) 17 SCC 401, the Supreme Court affirmed the age relaxation granted for reason of no Higher Judicial Service Examination having been conducted by the Delhi High Court for two years preceding the Higher Judicial Service Examination for the year 2020.
8. Coming to the present facts, it has been vehemently urged, the last Uttar Pradesh Higher Judicial Service Examination was conducted in the year 2020. Here also, two years have passed before the Uttar Pradesh Higher Judicial Service Examination 2023 has been initiated. Thus, as in the case of Devina Sharma (supra) so in this case, the petitioners could not appear at the earlier examinations. If Uttar Pradesh Higher Judicial Service Examination had been conducted in the year 2020 and 2021, the petitioners would have been eligible. Solely for reason of such examination not conducted, the petitioners have been ousted from the zone of consideration, for no fault.
9. On the other hand, Shri Ashish Mishra submits, the statutory scheme for conduct of Uttar Pradesh Higher Judicial Service Examination is governed by Uttar Pradesh Higher Judicial Service Examination Rules, 1975 (hereinafter referred to as the 'Rules'). By virtue of Rule 8(1) of the Rules, the selections have to be held every three years. Therefore, there was no fault on part of the High Court in not conducting the Higher Judicial Services Examination earlier, after it had conducted the Uttar Pradesh Higher Judicial Services Examination 2020. Therefore, against the statutory scheme, no equity may arise to the petitioners.
10. Then, a second point of distinction had been drawn on the strength of observations made in Devina Sharma (supra) to submit that the decision does not seek to lay down any law with respect to grant of age relaxation, rather it is only a decision of facts of a particular case. While it cannot be disputed that the judicial power exists to grant age relaxation, at the same time, it can never be said that any principle in law was laid down in that decision, relevant to the exercise of that power. Only for reason of peculiar facts noted in that case, age relaxation as had been granted on the judicial side by the Delhi High Court as a one time, was confirmed.
11. Having heard learned counsel for the parties and having perused the record, in the first place, Rule 8(1) of the Rules reads as 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."
12. The real status of the Delhi Higher Judicial Services Rules is not before us. Suffice to note, in Devina Sharma (supra), no notice was taken of any statutory rule existing with respect to the frequency of the selection examinations. It has been asserted by Shri Mishra that there was no statutory law prescribing the conduct of the Delhi Higher Judicial Services Examination. On the contrary, it appears, it was an admitted fact in that case that such examination had to be conducted on an annual basis, probably in view of the law laid down in Malik Mazhar Sultan (3) Vs. U.P. Public Service Commission, (2008) 17 SCC 703. Paragraphs 5, 17, 18, 19 and 29 in the case of Devina Sharma (supra) read as below:
5. When the petition was moved before the High Court, the Division Bench by its interim order dated 8-3-2022 [Devina Sharma v. High Court of Delhi, 2022 SCC OnLine Del 841] directed that the date for receiving applications shall be rescheduled to a date after the next date of hearing and the date of holding the examination shall also be postponed. The proceedings were directed to be listed on 7-4-2022 before the same Bench which was seized of an earlier writ petition, Writ Petition (Civil) No. 3636 of 2022 after obtaining the orders of the Chief Justice. Effectively therefore, by the interim order of the High Court, the examination for DJS which was scheduled to take place on 27-3-2022 would stand postponed.
17. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) v. U.P. Public Service Commission [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] . The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the Covid-19 Pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned Senior Counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations.
18. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such candidates has been remedied by the High Court and there is no reason for this Court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition. In order to facilitate this exercise, we accept the suggestion of the High Court that the last date for the receipt of application forms shall be extended to 3-4-2022 and the examination shall be held on 24-4-2022. We direct that no impediment shall be caused in the conduct of the examination and no court shall issue any order of stay at variance with or contrary to the above directions of this Court.
19. A communication of the modified dates in the above terms shall be placed on the website of the High Court of Delhi.
29. In order to obviate any further litigation and uncertainty, we permit the High Court as a one-time measure to allow those candidates who were within the age cut-off of 45 years during the recruitment years 2020 and 2021 to participate in the ensuing DHJS examinations.
13. From a plain perusal of the said decision, it is clear that it was not disputed to the Delhi High Court that the Higher Judicial Services Examination for the years 2020 and 2021 remained from being conducted. Then, the Supreme Court clearly took note of the fact that the exercise of discretion by the High Court under Article 226 of the Constitution of India to grant that age relaxation as a 'one time measure' and not by way of policy otherwise existing, may not be interfered. It is to that effect that the observations appear at the beginning of the discussion on "Issue no.1" (noted in paragraph 2 of the said decision). That fact occurrence has been emphasized in paragraph 29 of that decision.
14. As to the policy measure, the decision in the case of Hirandra Kumar (supra) has been reaffirmed. Thus, in the context of the rules and also the facts that the U.P. Higher Judicial Service Examination 2020 had been conducted in conformance thereto, there is no error or mistake or other action attributable to the High Court for the grievance arising to the petitioner that he has been rendered overage. Between the conduct of two examinations of Uttar Pradesh Higher Judicial Service i.e. 2020 and 2023 as noticed in Hirandra Kumar (supra) and as confirmed in Devina Sharma (supra), there existed a legislative policy decision which caused the dis-entitlement. It may not be interfered. Suffice to note, Rule 8(1) of the Rules stands upheld. Thus, there exists no room to grant age relaxation to the petitioners-applicants against the legislative scheme.
15. Present Review Application lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 31.5.2024
Prakhar
(Donadi Ramesh, J.) (S.D. Singh, J.)
