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Himachal Pradesh High Court · body

2005 DIGILAW 159 (HP)

SATISH KUMAR v. STATE OF HIMACHAL PRADESH

2005-05-25

K.C.SOOD, V.K.GUPTA

body2005
JUDGMENT K.C. Sood, J.—Under challenge, in this bunch of writ petitions, is Rule 5 of the Himachal Pradesh Judicial Service Rules, 2004 ("Rules" for short) which lays down the maximum age of 30 years for recruitment to the cadre of Civil Judges, Junior Division, in the State of Himachal Pradesh in case of general category candidates and 33 years in case of candidates belonging to the Scheduled Caste /Scheduled Tribe/other prescribed reserved categories as on the last date prescribed for receipt of applications. THE PERSPECTIVE : 2. Himachal Pradesh Judicial Service was constituted in the State of Himachal Pradesh on and with effect from April 19,1973 under the Himachal Pradesh Judicial Service Rules, 1973 ("1973 Rules" for short), made by the Governor of Himachal Pradesh in consultation with the High Court of Himachal Pradesh and Public Service Commission under Article 234 read with proviso to Article 309 of the Constitution of India. By a deeming clause, in terms of Rule 6, Part-IV of the Rules, all those persons who were working as Subordinate Judges/Judicial Magistrates at the commencement of the Rules were deemed to be appointed to the Service under the 1973 Rules. Rule 3 of 1973 Rules provided maximum age limit for recruitment to the Judicial Service, as 30 years and minimum age of 21 years. However, the maximum age limit was extendable to 40 years for an Advocate who had practised at the Bar for a minimum period of four years and for an official, who was Law Graduate and serving with the High Court or any other Court subordinate thereto in the State of Himachal Pradesh or in H.P. Government Secretariat or Offices subordinate thereto and had served as such for a minimum aggregate period of four years. Candidates belonging to Scheduled Caste, Scheduled Tribe or Backward classes were also made entitled to benefit of maximum age which may be allowed by the Government for entry into the Service from time to time. 3. The Apex Court in All India Judges Association and others v. Union of India and others (Review), 1993 (4) SCC 288, passed certain directions for the recruitment and working conditions of the Judicial Service of a State(s). One of the direction was : "All States shall take immediate steps to prescribe three years practice as a Lawyer as one of the essential qualification for recruitment to the Judicial Service". 4. One of the direction was : "All States shall take immediate steps to prescribe three years practice as a Lawyer as one of the essential qualification for recruitment to the Judicial Service". 4. In view of the directions of the Supreme Court, 1973 Rules were amended, in consultation with respondent No. 2-High Court on November 8,1994. Rule 4 was amended to provide minimum three years of legal practice at the Bar. Correspondingly, the maximum age for entry into the Judicial Service was raised from 30 years to 35 years. 5. The Union Government in the Ministry of Law, Justice and Company Affairs, in view of the directions of the Supreme Court in All India Judges Association Review (supra), appointed First National Judicial Pay Commission, popularly known as "Shetty Commission" under the Chairmanship of Honble Mr. Justice K.J. Shetty. One of the terms of the reference was : "To examine and recommend hi respect of minimum qualifications, age of retirement, method of recruitment etc., for Judicial Officers. In this context, the relevant provisions of the Constitution and directions of Supreme Court of India in Judges Association case and other cases may be kept in view". 6. Shetty Commission submitted its report on November 11, 1999. Amongst other recommendations, the Commission in Chapter-VIII of its report considered qualifications for recruitment etc., including minimum and maximum age for entry into the lowest rung of the Judicial Service. The Commission after, noticing various recommendations of the Law Commission, the existing Recruitment Rules of the various States, interaction with the Associations of the Judicial Officers and others concerned, took a view that it was not necessary to prescribe three years practice at the Bar as a condition for entering the Judicial Service. Considering the age limit for recruitment, the Commission concluded in paragraph 8.43 that the age of candidates for recruitment to a Judicial Service at the level of Civil Judge (Jr. Divn.) must be below 35 years. Para 8.43 of the Report reads: "8.43. Having regard to all these facts and circumstances, it seems to us that the candidate for recruitment in terms of age must be below 35 years. He will then have reasonable period of twenty five years of service". 7. In para 8. Divn.) must be below 35 years. Para 8.43 of the Report reads: "8.43. Having regard to all these facts and circumstances, it seems to us that the candidate for recruitment in terms of age must be below 35 years. He will then have reasonable period of twenty five years of service". 7. In para 8. 44, the Commission suggested to all the States and High Courts to fix 35 years as the maximum age for eligibility for selection to the cadre of Civil Judges (Jr. Divn.). 8. The Report of the Shetty Commission came to be considered before the Supreme Court in All India Judges Association and others v. Union of India and others, 2002 (4) SCC 247. The Apex Court considering the recommendations of the Shetty Commission to do away with three years standing at the Bar for entry into Judicial Service of a State at the level of Civil Judge (Jr. Divn.), in para 32 of the judgment, observed : "In All India Judges Association case (SCC at p. 314) this Court has observed that in order to enter the judicial service, an applicant must be an advocate of atleast three years standing. Rules were amended accordingly. With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an advocate for at least 3 years should be done away with. After taking all the circumstances into consideration, we accept this recommendation of the Shetty Commission and the argument of the learned amicus curiae that it should be no longer mandatory for an applicant desirous of entering the judicial service to be an advocate of atleast three years standing. We, accordingly, in the light of experience gained after the judgment in All India Judges case direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in three years of practice, to be eligible to compete and enter the judicial service. We, accordingly, in the light of experience gained after the judgment in All India Judges case direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in three years of practice, to be eligible to compete and enter the judicial service. We, however, recommend that a fresh recruit into the judicial service should be imparted training of not less than one year, preferably two years". 9. The Apex Court, as noticed above, directed High Courts and the State Governments to amend their rules to enable a fresh law graduate to be eligible to compete and enter the Judicial Service. Some of the recommendations were accepted with modifications and directions issued accordingly. The others were accepted as recommended or suggested. 10. In para 37 of the Judgment, Their Lordships observed : "Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted". 11. In view of the directions, of the Apex Court, noticed above, 1973 Rules were repealed and new rules called "The Himachal Pradesh Judicial Service Rules 2004" ("2004 Rules" for short) were made by the Governor of Himachal Pradesh in exercise of the powers under Articles 233, 234 and proviso to Article 309 of the Constitution of India read with sub-section (1) of Section 4 of the H.P. Judicial Service (Pay and Conditions of Service) Act, 2003 in consultation with the High Court of Himachal Pradesh and the State Public Service Commission. These rules regulate the recruitment and conditions of service of the members of different cadres of the H.P. Judicial Service. Rule 5 of 2004 Rules provide for method of recruitment, qualifications and age limit for the various categories of posts to the Judicial Service. So far recruitment to the post of Civil Judges (Jr. Divn.) is concerned, the relevant provision reads : "3. Civil Judges (Jr. Divn.). By direct recruitment on the basis of merit obtained in the competitive examination, written as well as oral {viva voce) tests to be conducted by the H.P. Public Service Commission : The following shall be the eligibility criteria including the qualifications and age etc. (1) Citizen of India. (2) Holding of Degree in law as recognized by the Bar Council of India. (1) Citizen of India. (2) Holding of Degree in law as recognized by the Bar Council of India. (3) Age limit, minimum 22 years and maximum 30 years (33 years in case of candidates belonging to Scheduled Caste/Scheduled Tribe/other prescribed reserved categories) as on the last date prescribed for receipt of applications". 12. The rule noticed above prescribes minimum age limit of 22 years and maximum 30 years for general category and 33 years in case of candidates belonging to Scheduled Caste/Scheduled Tribe/other prescribed reserved categories on the last date prescribed for receipt of applications for entry to the post of Civil Judge (Jr. Divn.). THE GRIEVANCE 13. The grievance of the petitioners is that this rule prescribing maximum age of 30 years runs counter to the recommendations of the Shetty Commission which recommended maximum age of 35 years for eligibility for recruitment to the cadre of Civil Judge (Jr. Divn.) with relaxation of three years for the Scheduled Caste/Scheduled Tribe candidates. 14. Heard learned Counsel for the petitioners, Mr. M.S. Chandel learned Advocate General, Mr. Rajiv Sharma, learned Senior Advocate for the High Court of Himachal Pradesh and Mr. D.K. Khanna for respondent No. 3 H.P. Public Service Commission. THE CONTENTION 15. Mr. B.C. Negi who led the arguments on behalf of the petitioners would contend before us that Shetty Commission recommended maximum age of 35 years for eligibility for selection to the cadre of Civil Judges (Jr. Divn.) with relaxation by three years to Scheduled Caste/Scheduled Tribe candidates. This recommendation having been accepted by the Apex Court, has become law and, therefore, Rule 5 which prescribes maximum age of 30 years with relaxation of three years to reserved category candidates is ultra vires the law declared by the Honble Supreme Court. 16. The contention is misplaced and without any foundation. 17. It is true that in All India Judges Association, 2002 (4) SCC 247, the Apex Court accepted the recommendations of the Shetty Commission though some of the recommendations with modification. It is equally true that Article 141 of the Constitution mandates that the law laid down by the Supreme Court is binding on all Courts and Tribunals and the Supreme Court, in exercise of its jurisdiction under Article 142 can pass decree or order as may be necessary for doing complete justice in any case which would be enforceable throughout the territory of India. There is no scope for dispute that any judgment or order of the Supreme Court is of binding nature. 18. We may now notice the recommendations of the Shetty Commission regarding the maximum age for recruitment to the post of Civil Judges (Jr. Divn.). The relevant paragraphs read : "8.40.While recommending the maximum age for recruitment of Civil Judges (Jr. Divn.), it is necessary to bear in mind the maximum age suggested by the Commission for direct recruitment of District Judges. There, we have indicated that the candidates should be between 35 and 45 years. Therefore, it is not proper to prescribe any age beyond 35 for selection to Civil Judges (Jr. Divn.). 8.41. Generally, persons with uninterrupted education would be able to graduate themselves at 21 years and complete the three years law degree course by 24 years. If we insist three more years of practice as a pre-condition for recruitment, then, they would be completing that period by 27 years. But this may be possible only for urban students. The rural students will have their own inherent disadvantage. We have, therefore, to give some more margin while fixing the maximum age. 8.42. Secondly, every year, there is no recruitment to the Civil Judge (Jr. Divn.) cadre. Advocates may have to wait for the advertisement for a couple of years after completing the three years Bar practice. 8.43. Having regard to all these facts and circumstances, it seems to us that the candidate for recruitment in terms of age must be below 35 years. He will then have reasonable period of twenty five year of service. 8.44. We accordingly suggest to all States and High Courts to fix 35 years as the maximum age for eligibility for selection to the cadre of Civil Judges (Jr. Divn.) with relaxation by 3 years for SC/ST candidates. (Emphasis given) 19. A careful reading of paragraphs 8.40 to 8.43 clearly indicates the view of the Shetty Commission that upper age limit should not go beyond 35 years if three years practice at the bar is to be made qualification for entry to the post of Civil Judge (Jr. Division). Paragraph 8.43 recommends that the candidate for recruitment to the post of Civil Judge (Jr. Divn.) must be below 35 years as he will have 25 years of service. Division). Paragraph 8.43 recommends that the candidate for recruitment to the post of Civil Judge (Jr. Divn.) must be below 35 years as he will have 25 years of service. It is in this context that in para 8.44 Shetty Commission suggested to the States and the High Courts to fix 35 years as maximum age for eligibility for selection to the cadre of Civil Judge (Jr. Divn.) with relaxation of three years for SC/ST candidates if three years practice at the bar is to be essential qualification to enter the service. However, as noticed earlier, the Apex Court in All India Judges Association, dispensed with three years of practice at the bar as qualification for entry into the Judicial Service at the level of Civil Judge (Jr. Divn.) and logically, therefore, the maximum age of 35 years had to be suitably reduced. 20. Reading para 8.44 of the Shetty Commission Report as an observation of the Supreme Court, it would only mean that the Apex Court suggests to the States and High Courts to prescribe 35 years as maximum age for eligibility for selection to the post of Civil Judge (Jr. Divn.) indeed with relaxation for three years to SC/ST candidates. We hardly need to emphasize that paras 8.40 and 8.43 have also been accepted by the Apex Court and these two paras clearly suggest that maximum age for recruitment to the post of Civil Judge (Jr. Divn.) should be below 35 years. 21. The Dictionary meaning of word "suggestion" is "to put forward for consideration" (See: New Oxford Dictionary of English). Blacks Law Dictionary (6th Edition) defines "suggestion" to mean a "presentation of an idea especially indirectly." 22. A suggestion indeed is neither a command nor a direction. The return filed by the High Court indicates that this suggestion of the Shetty Commission was considered by the High Court and the State in the light of various reports of the Law Commission and other relevant factors. After having considered all relevant material, the respondents took a view to fix the maximum age of entry into Judicial Service at the level of Civil Judge (Jr. Divn.) at 30 years. 23. After having considered all relevant material, the respondents took a view to fix the maximum age of entry into Judicial Service at the level of Civil Judge (Jr. Divn.) at 30 years. 23. The Law Commission of India in its 114th Report Vol-I dealing with the age limit for entry to subordinate judiciary took note of the fact that the age limit at which candidates are recruited to the judicial service varies in different States from 27 to 35 years and in some States as high as 40 years. The Law Commission in para 41 of Chapter-9 of its report observed : "The maximum age limit therefore for entry into the judicial service may well be fixed at thirty years". 24. This recommendation was reiterated by the Law Commission in its 116th Report observing that a reasonably intelligent person would be able to acquire a degree in law at the age of 22 years and there can be no objection in permitting him to appear at the competitive examination. However, it was observed that an upper age limit must be fixed beyond which no one would be eligible to appear at the examination and such upper age limit should be fixed at 30 years. 25. It was after taking into consideration the reports of the Law Commission, doing away with three years of practice at bar before recruitment, the fact that a person with continued education would be able to complete degree of law between the age of 21 years to 23, years that maximum age of 30 years, was provided in the rules for recruitment to the post of Civil Judge (Jr. Divn.) with relaxation of three years to the candidates belonging to reserved categories. 26. In our view, gap of about 12 to 13 years between the members of Judicial Service at entry level would neither be healthy nor conducive for the service. This apart a person, who is recruited to the Service at the age of 35 years or 38 years in case of reserved category, will get only 25 or 22 years of service, whereas, under the rules, a person is entitled to full pension only after 33 years of service. This apart a person, who is recruited to the Service at the age of 35 years or 38 years in case of reserved category, will get only 25 or 22 years of service, whereas, under the rules, a person is entitled to full pension only after 33 years of service. Looking to all these facts, the maximum age of 30 years prescribed under the "2004 Rules" by no stretch, as observed by us in the preceding paragraphs, can be said to be arbitrary or offensive to the directions of the Supreme Court in the case of Judges Association. It is also not contrary to the recommendations of the Shetty Commissions Report. Shetty Commission, we may say at the cost of repetition, recommended that maximum age for recruitment at the level of Civil Judge (Jr. Divn.) should be below 35 years though suggested to the States and High Courts to fix it at 35 years. This suggestion indeed was considered both on the administrative side of the High Court and the Government and looking to the various factors noticed above, the maximum age was fixed at 30 years with relaxation to reserved category up to three years. This rule, in no way, runs counter to the directions of the Supreme Court or its acceptance of the recommendations of the Shetty Commission. 27. Rule making power under proviso to Article 309 is legislative in nature. The eligibility criteria for recruitment to a service made under proviso to Article 309 of the Constitution of India can only be impugned on the ground of being violative of Articles 14 and 16 of the Constitution. It is not the case of the petitioners that Rule 5 which prescribes upper age limit of 30 years for recruitment to the post of Civil Judge (Jr. Divn.) is violative of either Article 14 or 16. 28. To sum up, Rule 5 of "2004 Rules" prescribing upper age limit of 30 years for recruitment to the post of Civil Judge (Jr. Divn.) does not run counter to the directions of the Supreme Court in All India Judges Association as contended by the learned Counsel for the petitioners nor is it violative of any direction of the Supreme Court. 29. In the end, learned Counsel for the petitioners tried to invoke the doctrine of legitimate expectation. The contention is noticed to be rejected. 29. In the end, learned Counsel for the petitioners tried to invoke the doctrine of legitimate expectation. The contention is noticed to be rejected. An expectation can only be based on express terms and settled conduct. Admittedly, in the present case, no assurance or terms or representation was made to the petitioners directly or indirectly. In any event, the change in the Service rules cannot be fettered by application of the principle of legitimate expectations. It is settled law that service rules can be changed even during the course of service of an incumbent. Doctrine of legitimate expectation cannot be introduced or invoked in case of change in service rules which are legislative in nature. 30. No other point was urged before us. 31. We find no merit in these petitions. 32. Dismissed. 33. No costs. 34. In view of the disposal of the petitions, all the CMPs in these petitions shall stand dismissed. Writ petition dismissed.