Honey vs State Of Rajasthan
2021 Latest Caselaw 18138 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 6364/2021

Surendra Khatri S/o Shri Manak Lal Khatri, Aged About 31 Years, Resident Of Babu Laxman Singh Colony, Outside 3Rd Pole, Mahamandir, Jodhpur (Raj.).

----Petitioner Versus

1. The State Of Rajasthan, Through Principal Secretary To The Government, Law And Legal Affairs Department, Government Of Rajasthan, Secretariat, Main Building Bhagwan Das Road, Jaipur (Raj.).

2. The Rajasthan High Court, New High Court Building, Dangiyawas Bypass, Jhalamand, Jodhpur Through Its Registrar (Examination).

3. The Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Main Building, Bhagwan Das Road, Jaipur (Raj.).

----Respondents Connected With D.B. Civil Writ Petition No. 5268/2021

1. Sunil Kachhawaha S/o Shri Jabar Singh Ji Kachhawaha, Aged About 33 Years, R/o K.k. Market, Near Bus Stand, Pipar City, District Jodhpur. At Present R/o K.k. Filling Station, Eight Mile, Mandore, Jodhpur (Raj.)

2. Deepak Bishnoi S/o Shri Babu Lal Ji Bishnoi, Aged About 32 Years, R/o H.no. 36, Behind Church, Opposite Power House, Prem Nagar, Banar Road, Nandri, Jodhpur (Raj.)

----Petitioners Versus

1. State Of Rajasthan, Through Principal Secretary To The Government, Law And Legal Affairs Department, Government Of Rajasthan, Secretariat, Main Building, Bhagwan Das Road, Jaipur (Raj.)

2. The Rajasthan High Court, New High Court Building, Dangiyawas Bypass, Jhalamand, Jodhpur Through Its Registrar (Examination)

3. The Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Main Building, Bhagwan Das Road,

(2 of 12) [CW-6364/2021]

Jaipur (Raj.)

----Respondents D.B. Civil Writ Petition No. 6380/2021 Pradeep Singh Rathore S/o Shri Laxman Singh Rathore, Aged About 33 Years, Resident Of 116 Rajput Mohalla, Raydhana, Tehsil Ladnu District Nagaur 341306 Rajasthan.

----Petitioner Versus

1. The State Of Rajasthan, Through Principal Secretary To The Government, Law And Legal Affairs Department, Government Of Rajasthan, Secretariat, Main Building, Bhagwan Das Road, Jaipur (Raj.).

2. The Rajasthan High Court, New High Court Building, Dangiyawas Bypass, Jhalamand, Jodhpur Through Its Registrar (Examination).

3. The Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Main Building, Bhagwan Das Road, Jaipur (Raj.).

----Respondents D.B. Civil Writ Petition No. 8855/2021 Honey S/o Shri Surendra, Aged About 32 Years, By Caste Kaushik, Resident Of Vpo Dhigal, District Jhajjar, Haryana, 124107.

----Petitioner Versus

1. State Of Rajasthan, Through Principal Secretary To The Government, Law And Legal Affairs Department, Government Of Rajasthan, Secretariat, Main Building, Bhagwan Das Road, Jaipur (Raj.).

2. The Rajasthan High Court, New High Court Building, Dangiyawas Bypass, Jhalamand, Jodhpur Through Its Registrar (Examination).

3. The Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Main Building, Bhagwan Das Road, Jaipur (Raj.).

                                                              ----Respondents





                                          (3 of 12)              [CW-6364/2021]




For Petitioner(s)        :     Mr. Vineet Dave
                               Mr. Sanjay Nahar
For Respondent(s)        :     Dr. Sachin Acharya
                               Mr. Sunil Beniwal, AAG
                               Mr. Chayan Bothra

HON'BLE THE CHIEF JUSTICE MR.AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL

Order

02/12/2021

These petitions arise out of common background. They have

been heard together and are being disposed of by this common

judgment. For convenience we may refer to the facts as stated in

Civil Writ Petition No. 5268/2021.

The petitioner No. 1 possesses the qualification of LLB and

LLM from the Jai Narain Vyas University, Jodhpur. He has

completed his LLB degree course in the year 2012 and is enrolled

as an Advocate in the Bar Council of Rajasthan on 14.07.2012.

Since then, he claims to be regularly practicing as an Advocate at

Jodhpur.

Likewise, petitioner no. 2 possesses the qualification of LLB

which he completed in the year 2012 and is enrolled as an

Advocate in the Bar Council of Rajasthan on 28.08.2012 and since

then he claims to be practicing regularly as an Advocate at

Jodhpur.

The Rajasthan High Court issued a public advertisement on

05.01.2021 for the purpose of selection for the post of direct

recruit District Judge in terms of Rajasthan Judicial Service Rules,

2010 (hereinafter referred to as "Rules"). The eligibility criteria for

the post in question under the said Rules, besides others, were

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that the candidate must have attained the age of 35 years and

must not have attained the age of 45 years on the 1 st day of

January following the last date fixed for receipt of the applications.

The upper age limit would be relaxed by 5 years in case of

candidates belonging to the reserved categories. The petitioners

were less than 35 years of age on the crucial date. As per the said

Rules thus, they were not eligible for selection. They have

therefore challenged the vires of Rule 33(i) of the said Rules which

prescribes the eligibility for direct recruitment to the post of

District Judge. Their contention is that fixation of minimum age of

35 years as eligibility criteria is bad in law.

The case of the petitioners is that in several other States

such as Delhi and Karnataka, the requirement of minimum age

has been done away with. The same should also be applied in the

State of Rajasthan.

The High Court administration has filed reply in one of the

petitions though in other petitions, reply has not yet been filed.

However, issues being identical, it is not necessary to have the

reply of the High Court brought on record in all matters. In such

reply, it is pointed out that the said Rules are framed in exercise of

the powers conferred under Article 233 and 234 read with Article

309 of the Constitution. The petitioners have not made out any

ground for declaring the Rule in question as ultra-vires. It is

pointed out that the Shetty Commission also recommended that

the direct recruitment as a District Judge should not be made of a

candidate who is less than 35 years of age. It is pointed out that

the Supreme Court in the case of All India Judges Association

and others Vs. Union of India, (2002) 4 SCC 247 has

approved the Shetty Commission recommendations with certain

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modifications. Thus, the Rule in question even otherwise is in

consonance with the recommendations made by the Shetty

Commission. It is pointed out that similar challenge was made

before the Gauhati High Court and Patna High Court and the

petitions were dismissed.

In such background, learned counsel for the petitioners

submitted that there has to be uniformity of the age criteria for

appointment in all States. The lower age limit required in the

State of Rajasthan places the candidates at a disadvantageous

position since the younger advocates in Delhi and Karnataka can

apply. Learned counsel submitted that the age limit contained in

the Rules has no nexus with the purpose sought to be achieved

and therefore is violative of Article 14 of the Constitution. It is

lastly contended that Article 233(2) prescribes minimum

experience of seven years for a lawyer for direct recruitment as a

District Judge. Once a candidate fulfills this requirement,

thereafter there is no further need to prescribe minimum age.

On the other hand, learned counsel Dr. Sachin Acharya for

the High Court administration opposed the petitions contending

that the prescription of minimum and maximum age for

recruitment is a policy matter. The Rules are framed by the

Governor in consultation with the High Court. Thus, after due

deliberations, age criteria has been prescribed. He submitted that

the District Judges perform extremely important functions and

duties. If the High Court is of the opinion that the person entering

the service as a direct recruit District Judge must be of a certain

age so as to have sufficient maturity to discharge these important

functions, there is no reason to declare such a Rule as arbitrary.

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Learned counsel pointed out that various High Courts have

rejected such a challenge.

Having heard learned counsel for the parties and having

perused the documents on record, we find that Chapter VI of the

Constitution pertains to Subordinate Courts. Article 233 contained

in Chapter VI pertains to appointment of District Judges. Clause

(1) of Article 233 provides that the appointments of persons to be,

and the posting and promotion of District Judges in any State shall

be made by the Governor of the State in consultation with the

High Court exercising jurisdiction in relation to such State. Clause

(2) of Article 233 provides that a person not already in the service

of the Union or of the State shall only be eligible to be appointed

as a District Judge if he has been for not less than seven years an

advocate or a pleader and is recommended by the High Court for

appointment.

Direct recruitment of a District Judge is thus constitutionally

recognized in Article 233 and forms an important source of

recruitment. The vexed question whether an existing Judicial

Officer in the district judiciary can compete for direct recruitment

under this source, has received attention of the Supreme Court in

number of occasions. The earliest judgment was rendered by

Constitution Bench in the case of Rameshwar Dayal Vs. State

of Punjab and others AIR 1961 (SC) 816. This was followed in

three Judges Bench of Supreme Court in the case of Satya

Narain Singh Vs. High Court of Judicature at Allahabad and

others, (1985) 1 SCC 225. These judgments provided that a

civil judge cannot compete in this quota. A slightly different note

was sounded in two Judge Bench of Supreme Court in the case of

Vijay Kumar Mishra and another Vs. High Court of

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Judicature at Patna and others, (2016) 9 SCC 313, in which

it was observed that the bar prescribed under Article 233(2)

prescribes only appointment of a person in service and not his

participation in the recruitment process. On such basis, it was

found that a Judicial Officer can also apply for direct recruitment

as a District Judge. Only at the time of his appointment he should

not be holding a judicial post. This decision was doubted and

referred to Larger Bench. Three Judge bench in case of Dheeraj

Mor Vs. High Court of Delhi, (2020) 7 SCC 401, over-ruled the

decision in the case of Vijay Kumar Mishra (supra). We have

referred to these decisions in order to demonstrate that the direct

recruitment to the post of District Judge from the practicing

advocates is an important source of recruitment constitutionally

recognized.

Before we deal with the challenge to the minimum age

prescription for the post in question, we may also record that a

District Judge has wide powers. He would be dealing civil suits

without limitation of pecuniary jurisdiction, would have appellate

and revisional powers. He would also be entrusted with the task of

sessions trials where the offence alleged carries punishment for an

imprisonment of life or even death. It can thus be seen that the

position carries great responsibilities and the person holding the

post is expected to discharge functions and duties of judicial

nature and is entrusted with widest possible powers.

The said Rules were framed by the Governor of Rajasthan in

consultation with the High Court in exercise of powers conferred

under Article 233 and 234 read with proviso to Article 309 of the

Constitution. Chapter C of the Rules pertains to recruitment to the

cadre of District Judge. Rule 31 contained in Chapter C prescribes

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different sources of recruitment and essentially provides that the

cadre of District Judge would consist of direct recruits as well as

promotees. Sixty-five percent posts would be filled up by

promotion from amongst the Senior Civil Judges on the basis of

merit-cum-seniority, ten percent posts would be filled up by

promotion from the same source strictly on the basis of limited

competitive examinations and twenty-five percent of the posts

would be filled by direct recruitment from amongst the eligible

advocates on the basis of written examination and interview

conducted by the Court. Part II of Chapter C pertains to direct

recruitment. Rule 33 contained in the said part provides that for

the purpose of direct recruit under Sub-rule (3) of Rule 31,

applications shall be invited by the Court from those advocates,

who fulfill the eligibility conditions prescribed therein. Clause (i)

provides that the person concerned "must have attained the age

of 35 years and must not have attained the age of 45 years on the

first day of January following the last date fixed for receipt of the

applications".

It is well settled that there is presumption of constitutionality

of a statute. Reference in this respect has been made upon the

judgment of the Constitution Bench of Supreme Court in the case

of State of Jammu & Kashmir Vs. Triloki Nath Khosa and

others, 1974 AIR (SC) 1. Such presumption of constitutionality

is also attached to the statute framed by subordinate legislation.

Reference in this respect has been made by Supreme Court in the

case of Indian Express Newspapers Vs. Union of India, AIR

1986 SC 515. The onus is thus on the petitioners who canvas

that the Rule in question is unconstitutional to establish the same

by producing necessary material in support of the challenge. In

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our opinion, the petitioners have not made out any ground

whatsoever to hold the eligibility criteria as unconstitutional. As

noted principally, only two grounds were raised. Firstly, that some

of the States have removed the minimum age requirement. That

by itself would not render the Rule unconstitutional. In fact, as

noted, the Shetty Commission recommendations were exactly

along this line. These recommendations have been examined and

approved by the Supreme Court in the case of All India Judges

Association (supra). The other ground was that there is already an

experience requirement of seven years, after which inserting the

filter of minimum age qualification does not serve any purpose.

We have noted the importance and seriousness attached to this

source of recruitment and that nature of duties, functions and

responsibilities to be discharged by the District Judge upon his

appointment. If the rule making authority, which in the present

case is High Court, has after due deliberations decided that the

minimum age criteria should be applied for direct recruitment, we

do not find such a requirement is arbitrary or unreasonable. As is

well known, such policy decisions are taken by the High Court in

Full Court meetings. The Full Court comprises of all sitting Judges

of the High Court on the day. After such deliberations, if the rule

making authority has prescribed the criteria, the same cannot be

lightly disturbed.

This is precisely the view expressed by several High Courts.

The Division Bench of this Court in the case of Miss Maryada

Sharma Vs. Rajasthan High Court and others (D.B. Civil

Writ Petition No. 21343/2013, decided on 17.12.2013) had

dealt with similar challenge. In the said case, there was a

minimum age requirement of 23 years for recruitment to the post

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of Civil Judge. The petitioner argued that such age limit should

either be reduced to 21 years or be removed altogether. The

Division Bench, while dismissing the said writ petition made the

following observations:-

"The Rules had been framed in exercise of powers conferred by Article 233 and 234 read with proviso to Article 309 of the Constitution of India for regulating recruitment to the posts in the service and the conditions and other matters related thereto. Understandably, exhaustive deliberations and scrutiny of all relevant aspects bearing on the office and, inter alia, the nature of duties and responsibilities attached thereto, had been undertaken to frame each provision thereof, assigning paramount importance to the demanding institutional exigencies. Apart from the fact that it is perceptionally the singular prerogative of the appointing authority, the Governor of Rajasthan, in consultation with the Rajasthan public Service Commission and the High Court of Judicature for Rajasthan, to frame rules in exercise of the aforementioned constitutional powers and to provide for norms for regulating recruitment to the posts in the service to adequately cater to the institutional essentialities and imperatives, the act involved being exclusively legislative in nature, no provision thereof can be lightly tinkered with.

The conditions for recruitment and the terms and conditions of service need to be devised and formulated as per the respective institutional requirements and thus, may possibly vary in their nature and contents, High Court wise. The legislative wisdom of designing the provisions of such Rules informed with that objective is not open to the assailed on the grounds as urged. The lower age limit for entry in the service has been prescribed to be 23 years on an indepth scrutiny and consideration of all relevant aspects adapted to the organizational needs.

A close perusal of Rule 17 of the Rules demonstrates that it does adequately take care of age limits of various categories of candidates.

No case for interference is made out.

The petition lacks in merit and is rejected. The stay application also stands dismissed."

In case of Prabal Kr. Ghosh Vs. State of Tripura and

others (W.P.(C) No. 281 of 2009), the Division Bench of

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Gauhati High Court in its judgment dated 28.01.2010 considered

the challenge of minimum age requirement prescribed under the

rule for direct recruitment to the District Judge. This challenge was

repelled making following observations:-

12. From the ratio laid down by the Apex Court (Constitution Bench) in Bal Mukund Sah's case (supra), it is clear that the proviso to Article 309 of the Constitution of India permits the Governor of the State to fill up the gap, of there is no such statutory provision governing the concerned topics. Article 233 of the Constitution of India does not prescribe the minimum age limit for direct recruitment to the post of District Judge, and, therefore, in the exclusive field for operation by the relevant provision of articles dealing with the Subordinate Judiciary found in Chapter VI of Part VI of the Constitution of India, there is a gap so far as minimum age limit for direct recruitment to the post of District Judge is concerned. As such, there is no embargo on the Governor of the State in prescribing the minimum age limit for direct recruitment to the post of District Judge in exercise of his powers conferred by the proviso of Article 309 of the Constitution of India.

13. This being the settled position of law, we are of the considered view that Rule 7 of the Rules, 2003 wherein minimum age limit for direct recruitment to the Tripura Judicial Service Grade-I is prescribed is not in conflict with the mandate so provided in Article 233 of the Constitution of India. Therefore, the case of the petitioner that Rule 7 of the Rules, 2003 is in conflict with Article 233 of the Constitution of India holds little water and, accordingly, not accepted.

In the case of Sunil Kumar Sinha Vs. State of Bihar and

others (Letters Patent Appeal No. 775 of 1999, decided on

19.01.2000), the Division Bench of Patna High Court considered

the similar challenge. The petition was dismissed making following

observations:-

"12. The learned Single Judge has considered the question of reasonableness of fixing the minimum age and has held that there is reasonable nexus with the object sought to be achieved and fixing 35 years as the minimum age cannot be said to be discriminatory. I find myself in complete agreement with the learned

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Judge. Where appointments are to be made by selection from the eligible candidates, it is open to the Government to fix criteria in order to maintain high standard of competence. No error, therefore, can be found with the impugned clause of the advertisement. In the above premises, I do not find any merit in the plea of the appellant."

In the result, the petitions are dismissed. Under the interim

orders, the petitioners were allowed to sit in the preliminary

examination. Now that the petitions are being dismissed, the

result of such examination qua the petitioners would be of no

consequence. Interim relief granted earlier stands vacated.

                                   (SUDESH BANSAL),J                                       (AKIL KURESHI),CJ


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