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2008 DIGILAW 159 (UTT)

Munish Bhardwaj & others v. State of Uttarakhand.

2008-04-07

J.C.S.RAWAT, V.K.GUPTA

body2008
Judgment V.K. Gupta, C. J. What is under challenge in this writ petition, filed under Article 226 of the Constitution of India, is the stipulation in Rule 11 of the Uttaranchal Higher Judicial Service Rules, 2004 ('2004 Rules' for short) that a candidate for direct recruitment should not be less than 35 years and should not be more than 45 years for being eligible to apply for appointment in the Higher Judicial Service. Rule 11, for ready reference, is reproduced hereunder, which reads thus: "11. Age - A candidate for direct recruitment must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January of the years in which the notice inviting applications is published: Provided that candidates belonging to Scheduled Caste, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be entitled for relaxation in age according to rules as are applicable at the relevant time." 2. Mr. Manoj Tiwari, learned counsel appearing for the petitioners, who are practicing Advocates with more than 7 years experience at the Bar, submits that Article 233 of the Constitution of India, in so far as direct recruitment in the Higher Judicial Service is concerned, lays down only one eligibility criterion and that is that the persons applying should have not less than 7 years experience as Advocates. Since Article 233, according to Mr. Manoj Tiwari, does not contain any stipulation with respect to age bar, according to him, any rule, which creates such a bar, has to be declared unconstitutional being ultra vires of Article 233. We do not agree with the submission. 3. 2004 Rules have been framed by the Governor in exercise of the power vesting in him under the proviso to Article 309 of the Constitution of India read with Article 233 after consultation with the High Court of Uttarakhand. It is a settled proposition of constitutional law that under the proviso to Article 309, Rules with respect to conditions of service etc. have to be framed by the Governor. Actually Article 309 stipulates that the rules framed there under may regulate the recruitment and conditions of service of persons appointed to public services. The expression "public services" includes the judicial service also. have to be framed by the Governor. Actually Article 309 stipulates that the rules framed there under may regulate the recruitment and conditions of service of persons appointed to public services. The expression "public services" includes the judicial service also. The only stipulation, in so far as the judicial service is concerned, is that the rules framed under the proviso to Article 309 have to be in conformity with the relevant Articles in the Constitution relating to Judicial Service, as in our case Article 233, and these cannot be framed except in consultation with the High Court. It is not open to a person or a candidate to say that merely because Article 233 prescribes just one eligibility criterion, namely the experience of more than 7 years as an Advocate, no other eligibility criterion or criteria can be imported into Article 233 for being included in the relevant recruitment and service rules. It is open to the Governor to stipulate, in the recruitment rules, the minimum as well as the maximum age bar. 4. Mr. Manoj Tiwari then contended that there is a conflict between 2004 Rules and the U.P. Recruitment to Services (Age Limit) Rules, 1972. ('1972 Rules' for short). According to him, as per Rule 6 of the aforesaid 1972 Rules, the minimum or the maximum age of a candidate, as prescribed from time to time, has to be effective as on the first day of July of the calendar year in which vacancies for direct recruitment are advertised. Since Rule 11 of 2004 Rules makes the minimum and the maximum age bars effective as on the first day of January of the year in which the notice inviting applications is published, according to Mr. Manoj Tiwari, this is in clear conflict with the special law, namely, the aforesaid 1972 Rules. 5. The argument has been noticed only to be rejected because it ignores a very basic difference between the 1972 Rules and 2004 Rules. 1972 Rules have not been framed by the Governor in consultation with the High Court. No rule relating to recruitment to a judicial service can be framed nor can it be held to be a valid piece of subordinate legislation, if it is framed without the consultation of the High Court. 1972 Rules have not been framed by the Governor in consultation with the High Court. No rule relating to recruitment to a judicial service can be framed nor can it be held to be a valid piece of subordinate legislation, if it is framed without the consultation of the High Court. Since 2004 Rules have been framed by the Governor in consultation with the High Court, it was open to the Governor to prescribe the cut- off date, in other words, the effective date when the minimum and the maximum age bars would be operative. 6. We find no merit in the writ petition. It is dismissed in limine.