Vinod Kumar Mantoo vs High Court Of Delhi
2009 Latest Caselaw 5097 Del

               THE HIGH COURT OF DELHI AT NEW DELHI

%                                                    Judgment delivered on: 09.12.2009

+       WP (C) 13736/2009

VINOD KUMAR MANTOO                                                    .... Petitioner

                                               - Versus -

HIGH COURT OF DELHI                                                   .... Respondent

Advocates who appeared in this case:-

For the Petitioner       : Mr Alok Singh
For the Respondent       : Mr Chetan Lokur for Mr Viraj R. Datar


CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition is directed against the letter dated 16.11.2009

issued by the High Court whereby the petitioner has been informed that

his application to appear in the Delhi Higher Judicial Services

Examination, 2009 has been rejected on the ground that he was

"overage". The plea of the petitioner is that he is entitled to relaxation

of the upper age limit for recruitment under the Residents of Kashmir

Division in the State of Jammu and Kashmir (Relaxation of Upper Age

Limit for Recruitment to Central Civil Services and Posts) Rules, 1997

(hereinafter referred to as „the said Rules‟) as amended up to date,

issued under Article 309 and Clause (5) of Article 148 of the

Constitution of India by the Department of Personnel and Training by a

notification dated 07.12.2007. The learned counsel for the petitioner

pointed out that the principal rules were notified on 10.04.1997 vide

No. GSR 208 (E) in the Gazette of India. It was subsequently amended

as under:-

(i) GSR 826 (E) dated the 27th December, 1999

(ii) GSR 919 (E) dated the 22nd December, 2001

(iii) GSR 879 (E) dated the 10th November, 2003

(iv) GSR 707 (E) dated the 6th December, 2005

According to the learned counsel for the petitioner the amendments

extended the date appearing in Rule 1(3). The date stipulated in Rule

1(3) of the said Rules was the terminal date upto which the rules were

to remain in force. Initially, the said date was 31.10.1999. The same

was extended by the subsequent amendments and, ultimately, by the

amendment notified on 07.12.2007 whereby the operation of the said

rules was extended up to 31.12.2009.

2. The case of the petitioner is that the said rules are applicable and

that Rule 6 thereof would come to his aid. Rule 6 of the said Rules

reads as under:-

"6. Amendment of recruitment rules. -- All rules regulating the recruitment of persons to Central Civil Services and posts including those in the Indian Audit and Accounts Department and the rules governing competitive examinations therefor shall be deemed to have been amended to the extent provided for in these rules."

According to the petitioner he is a resident of Jammu and Kashmir and

he had already annexed his domicile certificate along with the

application. The petitioner was born on 01.04.1963 and would be 45

years and 9 months old as on 01.01.2009, which is the relevant cut-off

date for the Delhi Higher Judicial Services Examination, 2009. The

normal upper age limit for the said examination is 45 years as per Rule

9 (3) of the Delhi Higher Judicial Service Rules, 1970 (hereinafter

referred to as „the DHJS Rules‟). According to the petitioner the rules

providing for relaxation in respect of residents of the State of Jammu

and Kashmir ought to be applicable and, therefore, he should be given

age relaxation of five years as per Rule 6 of the said Rules.

Consequently, he should be permitted to appear in the examination and

the rejection letter dated 16.11.2009 be set aside.

3. The learned counsel appearing on behalf of the petitioner also

referred to the Instructions for the Guidance of Candidates for direct

recruitment to the Uttar Pradesh Higher Judicial Service, 2007. He

drew our attention to paragraph 4 thereof, which reads as under:-

"4. 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 2008; in other words, he must have been born on or after 01.01.1963 and not later 02.01.1973. 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."

(underlining added)

In particular, he drew out attention to the last portion of the said

paragraph 4 which stipulates 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". According to the learned counsel for

the petitioner, the petitioner would be covered under the expression

"such other categories as may be notified by the Government from time

to time" because of the said rules applicable to the residents of Jammu

and Kashmir. It is his case that, therefore, a person such as the

petitioner would be eligible for age relaxation for appearing in the Uttar

Pradesh Higher Judicial Services. Consequently, a similar relaxation

should be given to him in respect of the Delhi Higher Judicial Service

Examination.

4. The learned counsel appearing for the Delhi High Court placed

before us a decision of a Division Bench of this Court in the case of

Rajpal Singh v. Hon'ble Delhi High Court: WP(C) 4885/2007

decided on 13.07.2007. In that case also the question for consideration

was whether a person belonging to a Scheduled Caste would be entitled

to age relaxation? We are not so much concerned as to whether the

candidate belongs to a Scheduled Caste or Scheduled Tribe or some

other category which may be notified by the Government, but, we are

concerned with the question as to whether any age relaxation at all is

permissible under the DHJS Rules. As mentioned above, the exact

question came up for consideration before this Court in the said case of

Rajpal Singh (supra). The Division Bench held that since Rule 9 of

the DHJS Rules does not provide for any relaxation, the petitioner

therein would not be entitled to any age relaxation. Reference was also

made to an earlier Division Bench decision of this Court in the case of

P. K. Bhasin v. Union of India: 1991 (4) SLR 480. One of the

questions that was decided by the Division Bench in P. K.

Bhasin(supra) was-- whether, by virtue of Rule 22 of the DHJS Rules,

relaxation in the age limit would be permissible in respect of a

candidate belonging to a Scheduled Caste or a Scheduled Tribe? The

answer given by the Court was that there was no provision for any age

relaxation for such candidates in view of the specific provision of Rule

9(3) of the DHJS Rules.

5. Rule 9 of the DHJS Rules is as under:-

"9. The qualifications for direct recruits shall be as follows:-

(1) must be a citizen of India.

(2) must have practiced as an Advocate for not less than seven years.

(3) must have attained the age of 35 years and have not attained the age of 45 years on the 1st day of January of the year in which the applications for appointment are invited."

(underlining added)

6. It was argued both in P. K. Bhasin (supra) and Rajpal Singh

(supra) that because of Rule 22 which provided for reservation of posts

for the Scheduled Castes and Scheduled Tribes, there was an inbuilt

provision for age relaxation. Rule 22 of the DHJS Rules reads as

under:-

"22. The reservation of posts for the Schedule Castes and Schedule Tribes shall be in accordance with the orders issued by the Central Government from time to time."

In P. K. Bhasin (supra), it was observed that under the existing rules,

there could be no variation from the upper age limit of 45 years as

provided by Rule 9 and that the general Rule 22 would not cover the

matter. However, this Court in P. K. Bhasin (supra) did not disqualify

the already selected candidates in view of the past practice and a

specific advertisement having been issued indicating that age relaxation

would be given. Anyhow, as observed in Rajpal Singh (supra), this

Court in P. K. Bhasin (supra) held in no uncertain terms that because

of Rule 9(3) there was no scope to hold that the relaxation in the upper

age limit as provided by the Office Memoranda issued by the

Government of India, would be applicable. The Court also observed

that, in P. K. Bhasin (supra), reasons to justify the provision contained

in Rule 9 (3) for not providing age relaxation were also given. One of

the reasons being that it would not be appropriate to have persons

entering service at the age of 50 years, when the retirement age itself

was 58 years.

7. From the aforesaid discussion, it is absolutely clear that there is

no provision under the DHJS Rules, as existing today, for relaxation of

the upper age limit, whether the candidate belongs to the general

category or to the category of Scheduled Castes or Scheduled Tribes or

any other category. This position has been settled by the decisions in

P. K. Bhasin (supra) and Rajpal Singh (supra).

8. The learned counsel for the petitioner drew our attention to

paragraph 102 in P. K. Bhasin (supra), where it was observed that the

matter be left to the administrative decision by the High Court whether

or not to undertake amendment of the recruitment rules in terms of the

office memorandum No. 36011/9/76.Estt. (STC) dated 14.07.1976 and

No. 36011/9/76-Estt. (STC) dated 07.03.1978. But, this aspect has also

been considered in Rajpal Singh (supra) in paragraph 8 thereof

wherein it was observed as under:-

"8. It would be relevant to mention that after the observations of the Division Bench as contained in para 102 and quoted above, the Full Court Meeting was held on

7th September, 1991. The matter regarding making of provision in the Delhi Higher Judicial Service Rules, 1970 for relaxation of upper-age limit for Schedule Castes/ Schedule Tribes candidates for recruitment to the DHJS from the Bar, came up for consideration but the Full Court decided to drop the same. The effect of this decision was that the Full Court decided not to carry out any amendment in Rule 9 which could provide relaxation in the age to SC/ST candidates. Thus conscious decision is taken by the Full Court not to alter Rule 9 as it exists and interpreted by this Court."

(underlining added)

9. In view of the foregoing discussion, it is clear that the High Court

on the administrative side considered the matter and did not bring about

any alteration in Rule 9(3) of the DHJS Rules. The said Rule 9(3)

specifically stipulates the upper age limit to be 45 years on the first day

of January of the year in which the applications for appointment are

invited. There is no provision for relaxation of the upper age limit in

the DHJS Rules. Therefore, no parity can be claimed by the petitioner

with the instructions issued by the High Court of Judicature at

Allahabad, on which he was relying upon.

10. Apart from this, we also make it clear that the said rules, which

are sought to be invoked by the petitioner for seeking relaxation, are

only in respect of the Central Civil Services and posts thereunder. Rule

6 of the said Rules makes it clear that they are applicable in respect of

recruitment of persons to Central Civil Services and posts including

those in the Indian Audit and Accounts Department and the rules

governing competitive examinations therefor. The said Rules do not

extend to judicial services and certainly not to the Delhi Higher Judicial

Service.

For all these reasons, the writ petition has no merit and is

dismissed. No order as to costs.

Dasti.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J December 09, 2009 SR