Upholding the minimum age requirement of 35 years for applying for the Delhi Higher Judicial Services Examination, the Supreme Court on Monday held that the prescription of a minimum age limit for the selection of District Judges is not contrary to the Constitution.
The Court held that Article 233(2) of Constitution only prescribes a minimum eligibility that an advocate should have at least 7 years practice for selection as a District Judge and that this does not preclude the stipulation of a minimum age requirement.
"The Constitution does not preclude the exercise of the rule making power by the High Court to regulate the conditions of service for appointment. The Constitution being silent in regard to the prescription of minimum age, the High Courts in exercise of the rule making authority are entitled to prescribe such a requirement", the Court observed in the case High Court of Delhi v. Nisha Tomar.
"It must be remembered that direct recruitment to the higher judicial services is intended to be from members of the bar who have sufficient experience. In fact, that is the reason why the Constitution stipulated at least seven years of practice as an advocate or a pleader. The High Court would be well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judicial services. The requirement that a candidate should be at least 35 years of age is intended to subserve this", the bench added.
The bench of Justices D. Y. Chandrachud, A. S. Bopanna and Hima Kohli was considering a special leave petition filed by the Delhi High Court on its administrativeside challenging Order dated March 4 passed by a Division Bench of the High Court
deferring the Delhi Higher Judicial Services Exam (DHJS), 2022 examination which was scheduled for 20th March. The order extended the last date of application beyond April 7. The order was passed in a petition by Nisha Tomar challenging minimum age limit of 35 years for appearing in DHJS. The petitioners have challenged the Rule brought by the High Court by contending that the Constitution of India, by virtue of Article 233, makes an advocate with seven years of practice eligible to be appointed as a District Judge. Therefore, the High Court cannot frame a Rule prescribing a minimum age limit of 35 years to apply for District Judge post.
Mr Amarjeet Singh Chandhiok, senior counsel appearing for the petitioners before the High Court, submitted that :
1. 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, a person should have been an advocate or pleader for not less than seven years;
2. No minimum age requirement is specified for appointment to the judicial services, as a consequence of which, candidates who have completed at least 10 years of service in the judicial service would be eligible for being promoted to the higher judicial services;
3. The High Court itself had removed the minimum age requirement of 35 years in 2019 which has been re-introduced in February 2022;
4. Persons such as the petitioners before the High Court should therefore be given the opportunity of appearing for the examination 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.
The submission which has been urged by Mr Chandiok was adopted by Senior Advocates Mr. Siddharth Luthra, Ms. Anita Shenoy, Mr Dharma Seshadri Naidu, the counsel for the interveners and the intervener-in-person.
Mr A. D. N. Rao, senior counsel for the High Court, has opposed the submission.
Shetty Commission has recommended 35 years minimum age for District Judge selection
The bench 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, candidate should be between the ages of 35 and 45 years, with an upper age relaxation of three years for SC/ST candidates.
The recommendations of the Shetty commission was initially followed by an order of a three-judge bench of the Supreme Court in the case All India Judges Association versus Union of India 2002 4 SCC 74. By the order of the court, the states and union territories to whom the 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 the three-judge bench in All India Judges Association case."
The bench noted,
"In terms of the rules of several High Courts, it is provided that for recruitment to the higher judicial services, the candidate should be of a minimum age of 35 with the maximum age limit of 45 years. For instance, the rules pertaining to the UP higher judicial services were noticed in the decision of a two judge bench of this court in Hirandra Kumar v. High Court of Judicature at Allahabad. The prescription of a rule providing for a minimum age requirement or a maximum age for entry into service is essentially a matter of policy. After noticing the earlier presidents on the subject, this court in Hirandra Kumar observed that essentially, the determination of the same lies in the realm of policy". Minimum age stipulation is not contrary to the Constiution
"The submissions of the petitioners to the effect that the prescription of a minimum age would be contrary to the constitutional provisions contained in article 233 cannot be accepted. Article 233 of the Constitution (2) stipulates that any person not already in the service of the Union or the State shall only be eligible to be appointed as a district judge if he has not for less than seven years been an advocate or a pleader and is recommended by the High Court for appointment. Article 233(1) stipulates that 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. Article 235 entrusts to the High Court the control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a state and holding any post inferior to the post of district judge."
Article 233 does not preclude HCs from prescribing a minimum age criteria for District Judge selection
The bench stated in its order that the Constitution only prescribes a minimum eligibility that an advocate should have at least 7 years practice for selection as a District Judge and that this does not preclude the stipulation of a minimum age requirement.
"The Constitution has prescribed the requirement to the effect that a person shall be eligible for appointment as the district judge subject to only if he has been an advocate or a pleader for at least seven years. The Constitution does not preclude the exercise of the rule making power by the High Court to regulate the conditions of service for appointment. The Constitution being silent in regard to the prescription of minimum age, the High Courts in exercise of the rule making authority are entitled to prescribe such a requirement. It must be remembered that direct recruitment to the higher judicial services is intended to be from members of the bar who have sufficient experience. In fact, that is the reason why the Constitution stipulated at least seven years of practice as an advocate or a pleader. The High Court would be well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judicial services. The requirement that a candidate should be at least 35 years of age is intended to subserve this."
"In the circumstances, we are of the view that there is absolutely no merit in the submission which has been urged on behalf of some of the petitioners before the High Court who have not fulfilled the age requirement of 35 years. Though for about a short period of a year the High Court had deleted the requirement of a minimum age of 35 years for entry into the higher judicial services, the High Court has set right the rule so as to bring it into conformity with the recommendations of the Shetty commission. We do not find any merit in the challenge which has been urged on behalf of the petitioners to that extent", directed the bench.
One-time relaxation for upper-age limit of 45 years given
Taking note of the fact that DHJSE was not held in 2020 and 2021, the Court allowed a one-time relaxation to age-barred candidates to participate in DHJSE 2022, provided they were eligible in 2020 and 2021.
The Court also extended the last date for application to March 26 and deferred the exams to April 3.
Case Title : High Court of Delhi v. Devina Sharma | SLP(C) 4432-4435/2022
Citation.: 2022 LiveLaw(SC) 286
Headnotes
Constitution of India, 1950 ; Article 233,235 - 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 - The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment - 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. (Para 26)
Delhi Higher Judicial Service - 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. (Para 29)
Service Law - The prescription of a rule providing for a minimum age requirement or maximum age for entry into service is essentially a matter of policy - Determination of cut-offs lies in the realm of policy. (Para 25)
Delhi Higher Judicial Service - 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.(Para 27)
