High Court of Delhi vs Devina Sharma

Partly allowing the appeals, the Court

HELD: 1.1 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. The object and purpose of the directions of this Court has been to ensure that the 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 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. [Para 18][522-G-H; 523-A-D]

1.2 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, this Court observed 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 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, 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 is accepted. This court directed 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. [Para 19][523-D-H]

2. In regard to the DHJS examination, 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 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. 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 to hold that the requirement that a candidate for the DHJS should be at least thirty-five years of age is invalid. [Paras 26, 27][525-F-H; 526-A-F, H; 527-A-B]

Malik Mazhar Sultan (3) v. Uttar Pradesh Public Service Commission (2008) 17 SCC 703; All India Judges Association v. Union of India (2002) 4 SCC 274; All India Judges Association v. Union of India (2002) 4 SCC 247 : [2002] 2 SCR 712; Hirandra

Kumar v. High Court of Judicature at Allahabad (2020)

17 SCC 401 : [2019] 2 SCR 608 – referred to.