Surjeet Singh Sikarwar vs High Court Of M.P. & Ors.

Vijay Kumar Shukla, J

Regard being had to the similitude of the issue involved in the present case, all the petitions are being disposed of by this common order, for the sake of convenience, the facts are noted from W.P. No.2163/2020 (Surjeet Singh Sikarwar Vs. High Court of Madhya Pradesh and others).

In W.P. No.2163/2020, the petitioner is practicing Advocate. It is contended that he is continuously preparing and appearing in various judicial officer examinations in different states including the State of Madhya Pradesh. He is aggrieved by the action of the respondents in reducing the maximum age limit from 48 years to 45 years by amending Recruitment Rules vide Gazette Notification dated 13-03-2018. It is contended that the aforesaid fixation of the upper age limit is arbitrary as in the other States the upper age limit prescribed is higher than 45 years.

The petitioners cited the recent judgment of the Supreme Court passed in the case of Dheeraj Mor Vs. High Court of Delhi in Special Leave to Appeal (C ) No(s).14156/2015, decided on 19-02-2020 in support for their contention. It was urged that the observation of the Apex Court are relevant, where it was dealing with the question as to the eligibility of members of the subordinate judicial service for appointment as District Judge as against the quota reserved for the Bar by way of direct recruitment. It held as under :

"37. Certain recommendations of the Shetty Commission have been referred to, but after their consideration in the All India Judges' Association case, there is no scope for considering the provisions of the Constitution to provide eligibility for inservice candidates for direct recruitment for the post of District Judge. The existing provisions are not restrictive but provide wider choice to improve and strengthen the judicial system and in tune with Articles 14 and 16.

Reference has been made to the decision in All India Judges' Association v. Union of India and Ors., (1992) 1 SCC 119, in which following observations have been made:

"9. We shall first deal with the plea for setting up of an All India Judicial Service. The Law Commission of India in its Fourteenth Report in the year 1958 said:

"If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable persons. A radical measure suggested to us was to recruit the judicial service entirely by a competitive test or examination. It was suggested that the higher judiciary could be drawn from such competitive tests at the all India level and the lower judiciary can be recruited by similar tests held at State level. Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at the bar should be done away with.

Such a scheme, it was urged, would result in bringing into the subordinate judiciary capable young men who now prefer to obtain immediate remunerative employment in the executive branch of government and in private commercial firms. The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the State. ...."

A further recommendation was made for the formation of the All India Judicial Service. The suggestion was made that practice at Bar for induction at the lower level should be done away with. Be that as it may. The prescription of the practice period of 3 years, has been changed time to time, but the facts remain that when it comes to the eligibility and recruitment from the Bar to the post of District Judge, practicing advocates from the Bar can be inducted by way of direct recruitment as against the quota fixed for them. The question involved in the matter is not whether the practice is necessary to join the subordinate judiciary."

Learned counsel for the respondents contended that the aforesaid judgment is not on the issue involved in the present cases. It was argued that the age has been prescribed as per the Recruitment Rules namely "Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2017", which has been amended by the Gazette Notification dated 13-03-2018. It was also urged that the said issue has already been decided by a Coordinate Bench of this court in the case of Kashiram Patel Vs. State of M.P. and others (WP No.10320/2018) decided on 08-05-2018.

We have heard the learned counsel for the parties. In the present case, the issue involved is in respect of fixation of upper age limit in the advertisement by the respondents for recruitment to the post of Higher Judicial Service. The issue is no longer res integra as it has already been decided in Kashiram Partel (supra). The recruitment to the post of Higher Judicial Service is governed by Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2017 (for short 'the Rules'). The relevant Rules reads as under :-

"2(h). "Recruitment Year" means year commencing from 1st Day of January of the year in which the recruitment process is initiated;

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Qualification for direct recruitment under clause (c) of sub rule (1) of Rule 5 :-

(1) No person shall be eligible for appointment by direct recruitment unless, he or she

(a) is a citizen of India;

(b) has attained the age of 35 (thirty five) years and has not attained the age of 45 (forty five) years on the first day of January in the year in which applications for recruitment are invited;"

These Rules were notified in the official Gazette on 13th March, 2018 and in terms of Rule 1(3), these Rules came into force on the said date.

The advertisement for filling up the posts under Rule 5(1)(c) was initiated with publication of an advertisement on 13th April, 2018. The petitioner challenges the fixation of maximum age as 45 years on the ground that the date of 1st January for determining the maximum age is arbitrary and that it gives retrospective effect to the Rules, therefore, such condition is contrary to the Rule 1(3) of the Rules. It is also contended that the petitioner was an aspirant for the Higher Judicial Service since the earlier years and has been preparing for the same, therefore, the age under the Rules cannot be fixed for the candidates like the present petitioner.

We do not find any merit in the present petition. The Rules as notified on 13th March, 2018 became effective with the publication of the Rules in the Gazette. However, Rule 7(1)(b) contemplates that the candidate has to be within the age group of 35 to 45 on 1st January in the year in which applications for recruitment are invited. Rule 2(h) of the Rules defines the "Recruitment Year" to mean year commencing from 1st Day of January of the year in which the recruitment process is initiated. Such condition is relevant for determining seniority of the candidates appointed under different sources i.e. under Rule 5(1)(a); 5(1)(b) and 5(1)(c) of the Rules. Therefore, 1st Day of January is relevant for the purposes of seniority and is relevant to determine eligibility conditions of the candidates. Still the condition of the age on 1st January of the year in which the applications are invited is part of the Rules. Further, the condition of age is not giving retrospective effect to the Rules notified on 13th March 2018.

Another argument that in other States, different maximum age has been prescribed, therefore, the prescription of maximum age of 45 years is arbitrary, also sans merit. The recruitment to the posts is to be made in terms of Recruitment Rules for the said post which are prevalent in the State. The prescription of minimum or maximum age is within the domain of the Rule making authority and the employer.

Consequently, we do not find any merit in these writ petitions. The same are dismissed.