Delhi High Court
Naresh Kumar & Anr vs The Hon’Ble Registrar General ... on 24 January, 2018
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 746/2018
NARESH KUMAR & ANR ..... Petitioners
Through: Mr.D.K.Sharma, Advocate
versus
THE HON'BLE REGISTAR GENERAL
DELHI HIGH COURT ..... Respondent
Through: Mr.Chaitanya Puri, Advocate for
Mr.Rajshekhar Rao, Advocate
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 24.01.2018
1. The present petition has been filed by the two petitioners praying inter
alia for issuing a writ of Mandamus to the respondent/DHC directing that
they may be permitted to appear in the Delhi Higher Judicial Service
Examination, 2017, by granting them age relaxation.
2. Learned counsel for the petitioners submits that on 23.12.2017, the
High Court of Delhi had invited applications from eligible candidates for
filling up 11 vacancies by way of direct recruitment in the Delhi Higher
Judicial Service, by holding Delhi Higher Judicial Service Examination.
Some of the terms and conditions of eligibility are as follows:-
"A candidate shall be eligible to appear in the examination if
he/she is (a) a citizen of India; (b) a person who has practised
as an Advocate for not less than 7 years; and (c) a person who
has attained the age of 35 years but has not attained the age of
45 years as on 1st January, 2017."
3. The date of birth of the petitioner No.1 is 04.04.1971 and that of
petitioner No.2 is 05.08.1971. Admittedly both the petitioners have crossed
the age of 45 years, as on 01.01.2017
4. The main thrust of the arguments addressed by learned counsel for the
petitioners is that though the petitioners had participated in the examination
conducted in the year 2015 by the respondent for the posts in the Delhi
Higher Judicial Services, they had not succeeded but had expected that the
respondent would publish the vacancies in Delhi Higher Judicial Services in
the next year i.e. in the year 2016, which they did not. By the time the
subject advertisement has been issued by the respondent, the petitioners have
become overage and thus missed the opportunity to apply. For seeking age
relaxation, learned counsel for the petitioners places reliance on the
judgment of the Supreme Court in the case of „Malik Mazhar Sultan & Anr.
vs. U.P. Public Service Commission & Ors.‟ reported as (2006) 9 SCC 507.
5. We have perused the aforesaid decision which has been passed in the
context of recruitment to the posts of Civil Judges, Junior Division in the
State of U.P. The Rules pertaining to the appointment on the subject post
have been extracted below from para 18 of the judgment:
"18. The age requirement is contained in Rule 10 which reads
as under:
10. Age - A candidate for direct recruitment to the service must
have attained the age of 22 years and must not have attained the
age of more than 35 years on the first day of July next following
the year in which the notification for holding the examination by
the Commission inviting Applications, is published.
Provided that the upper age limit shall be higher by five years
in the case of candidates belonging to Scheduled Castes,
Scheduled Tribes and such other categories as may be notified
by the Government from time to time.
Provided further that where a candidate was eligible in age to
appear at the examination in any year of recruitment in which
no such examination was held, he shall be deemed to be eligible
in age to appear in the next following examination.
Provided also that the maximum number of chances a candidate
is permitted to take will be four."
6. After taking note of the relevant Rules, the Supreme Court crystallized
the controversy raised in the captioned case and observed as follows:-
"21. The present controversy has arisen as the advertisement
issued by PSC stated that the candidates who were within the
age on 1st July, 2001 and 1st July, 2002 shall be treated within
age for the examination. Undoubtedly, the excluded candidates
were of eligible age as per the advertisement but the
recruitment to the service can only be made in accordance with
the rules and the error, if any, in the advertisement cannot
override the Rules and create a right in favour of a candidate if
otherwise not eligible according to the Rules. The relaxation of
age can be granted only if permissible under the Rules and not
on the basis of the advertisement. If the interpretation of the
Rules by PSC when it issued the advertisement was erroneous,
no right can accrue on basis thereof. Therefore, the answer to
the question would turn upon the interpretation of the
Rules."(emphasis added)
7. The underlying emphasis laid in the aforesaid judgment was on the
necessity to evolve a mechanism to fill up vacancies of Judges at all levels
without any delay. It was in the said context that the Supreme Court had
directed all the State Governments, Union Territories and High Courts to
provide a fixed time schedule for conducting the examinations on an annual
basis so that vacancies arising every year may be filled up promptly. The
aforesaid directions issued by the Supreme Court cannot be relied on by the
petitioners to approach the court for calling upon the respondent to grant
them any age relaxation for the simple reason that there is no Rule framed in
this regard for the subject examination.
8. The advertisement issued by the respondent has itself clearly stated
that for being eligible to participate in the subject examination, the candidate
must not only be a citizen of India and a person who is practicing as an
advocate for not less than seven years, but as on 1st January, 2017, he ought
have attained the age of 35 years, but should not have crossed the age of 45
years. Admittedly, both the petitioners have crossed the prescribed age bar
and in the absence of any Rule permitting relaxation of age, no such prayer
can be entertained.
9. Accordingly, the present petition is dismissed as being devoid of
merits.
HIMA KOHLI, J.
REKHA PALLI, J.
JANUARY 24, 2018
„pg‟
