The Madras High Court on Thursday refused to relax the upper age limit for persons belonging to Other Backward Class, for taking the District Judge examination.
A bench comprising Chief Justice A P Sahi and Justice Subramonium Prasad dismissed a batch of petitions, seeking to bring the upper age limit for the OBC category at par with Scheduled Caste/Scheduled Tribe (SC/ST) candidates. This would mean, relaxing the upper age limit from 45 to 48.
The court observed that the issue in question had attained finality at the hands of Supreme Court in All India Judges' Association & Ors. v. Union of India, (2002) 4 SCC 247.
In the said case, the top court had accepted the Shetty Commission report in relation to age relaxation, which did not contain any separate age relaxation for the Backward Classes.
"The judgment in All India Judges' Association and others v. Union of India (supra) is, therefore, a conscious decision on the Shetty Commission Report, which even having taken notice of relaxations being available to the other Backward Classes in I.A.S. recruitments, did not make any recommendations for such relaxation in upper age limit to Backward Classes in the judicial services. We are, therefore, bound by the same," the bench said.
The court did not accept the Petitioner's argument that denial of the benefit of age relaxation for OBCs was discriminatory and violative of Article 14 of the Constitution and said,
"The power to relax is not a fundamental right of reservation to be enforced under Part III of the Indian Constitution. It is in cases of hostile discrimination or manifest arbitrariness that can a challenge be raised upon exercise of such power."
It further held that 'Reservation' and 'Relaxation' are to be understood as two separate concepts and hence, relaxation is not a synonym for reservation.
"issue of reservation cannot be mixed up with the question of relaxation of age…The former, in terms of the Indian Constitution and in the present context partakes the nature of a fundamental constitutional right. The latter is a prescription of statutory procedure to meet a certain exigency at the option of the authority to exercise such power," the court said.
"It is an admitted position that the SC/ST category candidates are placed on a different scale as compared to the other Backward Classes. This is supported by the constitutional scheme by making separate provisions for both these classes."
Interestingly, while claiming that it was bound by the top court's decision, the bench further opined that it had constitutional powers to relax the upper age limit however, it'd rather not.
The court was of the view that the present arrangement stipulating different upper age limits for two different categories was a "valid indicator of prescription" and did not merit interference.
"It is not that the power to relax cannot be inferred, as, the Constitution empowers the High Court under Articles 233 and 235 of the Constitution to exercise such authority by prescribing a rule. The judgment in the case of All India Judges' Association and others v. Union of India (supra) also while accepting the Shetty Commission report does not debar the grant of further relaxation up to 48 years, but the recital of 48 years for SC/ST and 45 years for others is a valid indicator of prescription. It is not the case of the petitioners that no candidates of the Backward Classes are unable to apply or their numbers are so less on account of the prescription of 45 years upper age limit that some justification for relaxation in age can be culled out."
The court refused to allow the Petitioner's request merely because other High Courts had extended the benefit of age relaxation to the OBC candidates.
"If such benefits have been extended by other High Courts, the same cannot be said to be discriminatory as against the petitioners, inasmuch as if they are entitled to any such benefit in other States, the same does not render the present Rules invalid.
Even otherwise, under the federal structure of the Judiciary, there is no such All India Judicial Services in place and each State having its own independent judicial organization as envisaged under the Constitution, each of the States and its High Court having exercise of autonomy over such services are empowered to either extend such benefits or otherwise make some other provision of relaxation which cannot be pressed into service for an argument of invidious discrimination for providing relaxation in upper age limits," the court said.
The bench also turned down the Petitioner's attempt to rely on a notification issued by the high court authorities on January 13, 2019, whereby the upper age limit for an OBC candidate for appointment as a District Judge was stated to be 48 years.
After the authorities admitted that it was an inadvertent mistake and that another notification was issued by them on December 12, 2019, which stated the correct age limits, the bench held,
"An advertisement contrary to rules cannot create a vested right or even give rise to a legitimate expectation beyond the rules."
Notably, such an age relaxation is not permissible under the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007.
The court lastly addressed the issue relating to a gap of more than five years between issuance of notifications of vacancies for the said post. The Petitioner had contended that the District Judges exam was not conducted between 2013 and 2019, depriving a lot of candidates who had 'legitimate expectancy' that an examination will be conducted.
Declining any relief on this account, the court held that loss of opportunity on account of delay in the holding of examinations by itself, without there being any mala fides attributed, cannot be a ground to introduce any further relaxation in age.
"A legitimate expectation can only be pressed into as an argument, provided there is an existing right. The right should be legally sustainable and should be an accrued one. A mere chance or an expectancy of appearing in a recruitment process cannot by itself be a right unless it is shown that it violates Article 14 of the Constitution of India or any other constitutional provision or legal provision," the court held.
The petitioner in the instant case had earlier approached the Supreme Court against the refusal of the HC to allow him to provisionally register for the exam as in interim measure. The SC did not entertain the plea and disposed of the same with a 'request' to the HC to expeditiously consider the main petition.
Case Details:Case Title: N.S.Sivakumar v. State of Tamil NaduCase No.: WP No. 95/2020Quorum: Chief Justice Appellant Sahi and Justice Subramonium PrasadAppearance: Senior Advocate Om Prakash and Advocates V Vasanthakumar, V Arun, M Muthappan, K Ravi, Anantha Padmanaban, Muthappan, V Lakshmanan and R Sankarasubbu (for Petitioners); State Government Pleader V Jayaprakash Narayanan and Advocate B Vijay (for HC authorities)
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