High Court Of Delhi vs Devina Sharma

Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 2016 of 2022 (Arising out of SLP (C) No 4452 of 2022)

High Court of Delhi Appellant

Versus

Devina Sharma Respondent

WITH

Civil Appeal Nos 2017-2020 of 2022 (Arising out of SLP (C) Nos 4432-4435 of 2022)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

Signature Not Verified Digitally signed by Chetan Kumar Date: 2022.03.15 17:01:56 IST Reason: CA 2016/2022 2

2 These appeals arise from orders of a Division Bench of the High Court of

Delhi dated 4 March 2022 and 8 March 2022. The petitions before the High

Court under Article 226 of the Constitution have raised issues pertaining to

the validity of:

(i) The upper age limit of 32 years for appearing for the Delhi Judicial

Service1 examination; and

(ii) The minimum age requirement of 35 years for appearing for the Delhi

Higher Judicial Service2 examination.

3 The High Court of Delhi issued notifications for conducting the examinations

for DJS and DHJS on 23 February 2022. For the DJS, the last date for

submission of forms is 20 March 2022 and the examination is scheduled to

take place on 27 March 2022. For DHJS, the last date for submission of forms

was 12 March 2022 while the date of the examination is 20 March 2022.

4 The bone of contention pertains to Rule 14(c) of the Delhi Judicial Service

Rules 1970. Un-amended Rule 14(c) stipulated that a candidate shall be

eligible to appear at the examination if he is not more than 32 years of age

on the 1st day of January following the date of commencement of the

examination. The above rule was amended on 11 February 2022 so as to

stipulate that a candidate shall be eligible to appear at the examination if he

1“DJS” 2“DHJS” CA 2016/2022 3

is not more than 32 years of age on the 1 st day of January of the year in

which the applications for appointment are invited. The High Court of Delhi

conducted the last examination for recruitment to the DJS in 2019. It is

common ground that no examination was held in 2020 for institutional

reasons and in 2021 due to the onset of the Covid-19 pandemic.

5 The grievance of the petitioners before the High Court is that candidates who

would have qualified in terms of the upper age limit of 32 years for DJS, as

stipulated in Rule 14(c), would now cease to be eligible by virtue of the fact

that the examination is being held in March 2022. In terms of amended Rule

14(c) they would have crossed the age of 32 years on the 1 st day of January

of the year in which the applications for appointment are invited. In other

words, it has been urged that if the High Court had conducted the

examination on schedule in 2020 and 2021, such candidates would have

qualified for the examination since they were within the age limit of 32 years

for the relevant year.

6 When the petition was moved before the High Court, the Division Bench by

its interim order dated 8 march 2022 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 April 2022 before the same

Bench which was seized of an earlier writ petition, Writ Petition (Civil) No CA 2016/2022 4

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 March 2022 would stand

postponed.

7 Aggrieved by the interim order of the High Court, the jurisdiction of this Court

under Article 136 of the Constitution has been invoked by the High Court of

Delhi on the administrative side.

8 The earlier petition before the High Court related to the recruitment process

for DHJS which resulted in an interim order of the Division Bench dated 4

March 2022. The backdrop of the grievance before the High Court was that in

2019, the High Court had amended the DHJS Rules by a notification dated 26

December 2019. Rule 9(3) specifies the qualifications for direct recruits. The

requirement of a minimum age of 35 years was deleted by the notification of

the High Court dated 26 December 2019. Subsequently, by a notification

dated 8 February 2022, Rule 9(3) was amended so as to stipulate the

requirement that the candidate must have attained the age of 35 years. Rule

9(3) also provides that the candidate should not have attained the age of 45

years on the 1st day of January of the year in which the applications for

appointment are invited. The submission is that under Article 233 of the

Constitution, the only qualification for being appointed as a District Judge is

continuous practice of seven years as an advocate or a pleader. Hence, the CA 2016/2022 5

submission is that though the Constitution does not prescribe a minimum

age limit for appointment as a District Judge, Rule 9(3) introduces such a

requirement which would be in breach of the constitutional requirement.

9 The High Court by its interim order dated 4 March 2022 held that since the

minimum age limit had been reintroduced after a hiatus of two years, the

matter would require consideration. While directing that the petition should

be listed on 7 April 2022, the High Court has directed that the date for filling

up the online application forms should be extended beyond the next date of

hearing. Effectively, as a consequence of the interim order of the High Court,

the examination which was scheduled to be held on 20 March 2022 would

stand postponed. The High Court on its administrative side is before this

Court in proceedings under Article 136 of the Constitution.

10 On 11 March 2022, while issuing notice in the Special Leave Petition 3 relating

to the DJS examination, this Court passed the following order:

“The Court is convened through Video Conferencing.

Heard learned senior counsel appearing on behalf of the petitioner as also the respondent, who has appeared in person.

Issue notice.

The respondent, who appeared in person, accepts notice. The respondent is directed to file her response by 12.03.2022.

3 SLP (C) No 4452 of 2022 CA 2016/2022 6

The respondent claims that because of pandemic, she did not have opportunity to appear in the Delhi Judicial Services Examination for the last two years. She, accordingly, prays that as she has crossed the prescribed age limit of 32 years in the process, she may be permitted to appear in the present examination.

However, learned senior counsel appearing on behalf of the petitioner submits that approximately 5,700 candidates have applied for the said examination and the time schedule has already been fixed for the same.

Taking into consideration the fact that the time schedule of the above-mentioned examination has already been fixed by the Delhi High Court, we deem it appropriate to hear the matter and dispose of the same in accordance with law without stalling the examination process.

However, taking into consideration the facts and circumstances of the instant case, we permit the respondent to submit her application for the aforesaid examination which shall remain subject to the outcome of this petition.

List the matter on 14.03.2022.

The petitioner is directed to supply a copy of the petition to the respondent-in-person immediately.”

11 Likewise, while entertaining the Special Leave Petitions 4 pertaining to the

DHJS examination, this Court passed the following order on 11 March 2022:

“The Court is convened through Video Conferencing.

Heard learned senior counsel appearing on behalf of the petitioner.

Issue notice.

Dasti, in addition, is permitted.

4 SLP (C) Nos 4432-4435 of 2022 CA 2016/2022 7

It is noted that the respondents who preferred writ petitions before the High Court have not submitted any application for the Delhi Higher Judicial Services Examination, which is going to be conducted on 20.03.2022. The respondents moved the Delhi High Court straightway for relaxation of their age to appear in the above-mentioned examination. The High Court while issuing notice, directed to extend the date for filling up the online application form beyond the next date of hearing i.e. 07.04.2022.

Having heard learned senior counsel appearing on behalf of the petitioner and taking into consideration the fact that already more than 1200 applications have been received for the aforesaid examination, we are prima facie of the view that it is not appropriate to extend the time limit which was prescribed.

Hence, we direct the learned senior counsel for the petitioner to inform the respondents through mobile phone or e-mail to submit their applications within the time limit prescribed by the High Court i.e. 12.03.2022, which shall, however, remain subject to the outcome of these petitions. Learned senior counsel is further directed to inform the counsel for the respondents about the instant order also.

List these matters on 14.03.2022.”

12 Following the interim order of this Court, the petitioners before the High

Court have appeared through learned counsel. In addition, this Court is also

seized of a number of intervention applications by persons who are not

before the High Court, but claim the benefit of the directions contained in the

interim orders dated 11 March 2022.

13 We have heard Mr A D N Rao, learned senior counsel appearing on behalf of

the High Court of Delhi. On behalf of the respondents and the intervenors, we

have heard Mr Devadatt Kamat and Mr Amarjit Singh Chandhiok, learned CA 2016/2022 8

senior counsel. The intervenors have been represented in these proceedings

by Mr Sidharth Luthra, Ms Anitha Shenoy and Mr Dama Seshadri Naidu,

learned senior counsel and Mr Aditya Singh, Mr Amarjit Singh Chandhiok, Mr

Ranjan Nikhil Dharnidhar and Mr Deepkaran Dalal, learned counsel. Mr Anuj

Sharma, one of the intervenors has also appeared in-person.

14 We would deal with the issues pertaining to DJS and DHJS separately.

15 In order to enable the Court to render a full and complete adjudication of the

proceedings, the writ petitions 5 before the High Court under Article 226 of

the Constitution stand transferred to this Court. We have had the benefit of

the submissions urged on both the sides.

16 At the outset, Mr A D N Rao, learned senior counsel appearing on behalf of

the High Court of Delhi has stated that the High Court did not conduct the

examination which was scheduled to be held in 2020 and in 2021 for DJS.

The examination for 2020 could not be held for procedural reasons since the

process for the earlier recruitment year, 2019, had not been completed. As

regards the examination for 2021, it has been stated by the learned senior

counsel that the examination was not held due to the onset of the Covid -19

pandemic. In this backdrop, learned senior counsel submitted that

candidates who would otherwise qualify in terms of the upper age limit of 32

5 WP (C) No 3914 of 2022 & WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/2022 CA 2016/2022 9

years if the exams were held in 2020 and 2021, would now become age

barred since the examination is being held pursuant to the notification which

was issued on 23 February 2022.

17 Having regard to the above situation, it has been submitted by Mr A D N Rao

that this Court may, particularly having regard to the interim order dated 11

March 2022, grant the same benefit to all candidates, who would have

qualified for the examination, had the examination been conducted in 2020

and 2021 on the basis of the rules as they then stood. In order to effectuate

this, it has been submitted on behalf of the High Court of Delhi that the last

date for the acceptance of applications may be suitably postponed by this

Court, with the consequence that the dates for the examination may be

rescheduled. The High Court has stated that if this Court were to accept the

suggestion, a communication would be uploaded on the website of the High

Court for the intimation of all prospective applicants so that candidates who

would have been eligible during the recruitment years 2020 and 2021 may

be considered for the ensuing process as a one-on time measure.

18 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) vs Uttar Pradesh Public Service Commission 6. The object

and purpose of the directions of this Court has been to ensure that the

6 (2008) 17 SCC 703 CA 2016/2022 10

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.

19 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 CA 2016/2022 11

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

April 2022 and the examination shall be held on 24 April 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.

20 A communication of the modified dates in the above terms shall be placed on

the website of the High Court of Delhi.

Delhi Higher Judicial Service

21 The challenge before the High Court in the writ petitions 7 pertains to the

determination of a minimum age requirement of 35 years for appearing for

the Higher Judicial Service. Mr Amarjit Singh Chandhiok, learned senior

counsel appearing on behalf of the petitioners before the High Court submits

that:

7 WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/2022 CA 2016/2022 12

(i) Article 233 of the Constitution does not contain any requirement of a

minimum age and the only requirement is that in order to qualify for

appointment as District Judge, a person should have been an advocate

or a pleader for not less than 7 years;

(ii) No minimum age requirement is specified for appointment to the

judicial service as a consequence of which, candidates who complete 10

years of service in the judicial service would be eligible for being

appointed to the Higher Judicial Service before they attain the age of

thirty five;

(iii) The High Court itself had removed the minimum age requirement of 35

years in 2019 which has been reintroduced in February 2022; and

(iv) Persons, such as the petitioners before the High Court should therefore

be given an opportunity of appearing for the examinations for the

reason that until the rules were modified in February 2022, they would

have been eligible to appear for the examination if it was held at the

material time in 2020 and 2021.

22 The submission which has been urged by Mr Chandhiok, learned senior

counsel has been also adopted by Mr Sidharth Luthra, Ms Anitha Shenoy and

Mr Dama Seshadiri Naidu, learned senior counsel as well as the counsel

appearing on behalf of the intervenors and the intervenor in-person. CA 2016/2022 13

23 Mr A D N Rao, learned senior counsel appearing on behalf of the High Court

has opposed the submission.

24 In order to consider the tenability of the submission, it must be noted at the

outset that the First National Judicial Pay Commission, commonly known as

the Shetty Commission, recommended the introduction of the requirement

that for direct recruitment to the cadre of District Judges, candidates should

be between the age of 35 and 45 years with an upper age relaxation of three

years for SC/ST candidates. Paragraph 10.93 of the recommendations of the

Shetty Commission is extracted below:

“…we recommend that the candidates for direct recruitment to the cadre of District Judges should be between 35 and 45 years and the upper age may be relaxed by 3 years for SC/ST candidates."

25 The recommendations of the Shetty Commission were initially followed by an

order of a three-Judge Bench of this Court in All India Judges Association

vs Union of India8. By the order of this Court, the States and the Union

Territories to whom a copy of the report had been submitted were directed to

submit their responses to the Union of India expeditiously. Eventually, the

report of the Shetty Commission resulted in the judgment of a three-Judge

Bench of this Court in All India Judges Association vs Union of India 9.

8(2002) 4 SCC 274 9(2002) 4 SCC 247 CA 2016/2022 14

The rules of several High Courts provide that for recruitment to the Higher

Judicial Service, the candidate should be of a minimum age of 35, with a

maximum age limit of 45 years. For instance, the rules pertaining to the UP

Higher Judicial Service were noticed in a decision of a two-Judge Bench of

this Court in Hirandra Kumar vs High Court of Judicature at

Allahabad10. The prescription of a rule providing for a minimum age

requirement or maximum age for entry into service is essentially a matter of

policy. After noticing the earlier precedents on the subject, this Court in

Hirandra Kumar (supra) observed that the determination of cut-offs lies in

the realm of policy.

26 The submission of the appellants, to the effect that the prescription of a

minimum age would be contrary to the constitutional provision contained in

Article 233 of the Constitution, cannot be accepted. Article 233(2) of the

Constitution stipulates that a person not already in the service of the Union

or of a State shall only be eligible to be appointed a District Judge if he has

been, for not less than 7 years, an advocate or a pleader and is

recommended by the High Court for appointment. Clause (1) of Article 233

stipulates that appointments of persons, posting and promotion of District

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

High Court exercising jurisdiction in relation to the State. Article 235 entrusts

to the High Court control over the district courts and courts subordinate

10 (2020) 17 SCC 401 (“Hirandra Kumar”) CA 2016/2022 15

thereto including the posting and promotion of and the grant of leave to

persons belonging to the judicial service to the State and holding any post

inferior to the post of District Judge. The Constitution has prescribed the

requirement to the effect that a person shall be eligible for appointment as a

District Judge only if he has been an advocate or a pleader for at least seven

years. What this means is that a person who has not fulfilled the seven year

norm is not eligible. The Constitution does not preclude the exercise of the

rule making power by the High Courts to regulate the conditions of service or

appointment. The silences of the Constitution have to be and are

supplemented by those entrusted with the duty to apply its provisions. The

Constitution being silent in regard to the prescription of a minimum age, the

High Courts in the exercise of their rule making authority are entitled to

prescribe such a requirement. Direct recruitment to the Higher Judicial

Service is intended to be from members of the Bar who have sufficient

experience. The post of a District Judge is at a senior level in the cadre. Age

is not extraneous to the acquisition of maturity and experience, especially in

judicial institutions which handle real problems and confront challenges to

liberty and justice. The High Courts are well within their domain in

prescribing a requirement which ensures that candidates with sufficient

maturity enter the fold of the higher judiciary. The requirement that a

candidate should be at least 35 years of age is intended to sub-serve this.

Except for a short period when the requirement of a minimum age of thirty-

five was deleted, the Delhi High Court has followed the norm. CA 2016/2022 16

27 In the circumstances, we are of the view that there is no merit in the

submission which has been urged on behalf of the petitioners before the

High Court and the intervenors who have not fulfilled the age requirement of

35 years. Though for a short period of about a year, the High Court had

deleted the requirement of a minimum age of 35 years for entry into the

Higher Judicial Service, the High Court has set right the rule so as to bring it

into conformity with the recommendations of the Shetty Commission. The

deletion of the minimum age requirement of 35 years in 2019 may have

been guided by the need to attract a larger pool of applicants to DHJS. But

the reinstatement of a minimum age requirement of 35 years is a matter of

policy. This conforms to the recommendation of the Shetty Commission.

Hence, there is no valid basis for this court to hold that the requirement that

a candidate for the DHJS should be at least thirty-five years of age is invalid.

We do not find any merit in the challenge which has been urged on behalf of

the appellants to that extent.

28 During the course of the hearing, this Court has been apprised of the fact

that several applicants for the higher judicial service examination would have

qualified in terms of the upper age limit of 45 years in 2020 or, as the case

may be, 2021. As a matter of fact, Mr A D N Rao indicates that he has

instructions to the effect that some of those candidates may already have or

would be in the process of moving petitions before the High Court. The CA 2016/2022 17

reasons which have weighed with this Court in allowing the High Court, as a

one-time measure, to permit candidates for the DJS examination who had

qualified in terms of the upper age limit of 32 years during the recruitment

years 2020 and 2021, should on a parity of reasoning be extended to

candidates for the DHJS examination who would have qualified in terms of

the upper age limit of 45 years during the recruitment years 2020 and 2021

during which no examinations could take place for the reasons which have

been noticed earlier.

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.

30 For the Delhi Higher Judicial Service, the last date for the receipt of

applications shall stand extended to 26 March 2022 while the examination

shall be held on 3 April 2022, in those terms as stated before this court by

senior counsel representing the High Court.

31 The High Court of Delhi shall upload a corrigendum indicating the above

relaxation on its website.

CA 2016/2022 18

32 The appeals are partly allowed in the above terms. The writ petitions before

the High shall stand disposed of.

33 Pending applications, if any, stand disposed of.

….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

..…....…........……………….…........J. [A S Bopanna]

..…....…........……………….…........J. [Hima Kohli]

New Delhi;

March 14, 2022 CKB