Court No. - 38
Case :- WRIT - A No. - 13309 of 2018
Petitioner :- Gauri Shanker Prasad
Respondent :- Registrar General High Court Of Judicature At Allahabad And Another
Counsel for Petitioner :- Dushyant Kumar
Counsel for Respondent :- Manish Goyal
Hon'ble Abhinava Upadhya,J. Hon'ble Abhai Kumar,J.
Heard Sri Dushyant Kumar, learned counsel for the petitioner and Sri Manish Goyal, learned counsel appearing for High Court.
By means of this writ petition, the petitioner has made the following prayers:
(i) Issue a writ order or direction in the nature of certiorari call for the records and quash the Rule 8 (1) and 12 of the U.P. Higher Judicial Services Rules, 1975 to the extent it relates to inviting the application within 3 years from the last recruitment and judging the age of candidates on the first day of January next following the year in which the notice inviting application is published respectively by declaring the same as ultravires to Article 143 of the Constitution of India.
(ii) Issue a writ order or direction in the nature of Mandamus directing and commanding the respondents to forthwith consider the application form of the petitioner for direct recruitment to the U.P. Higher Judicial Service Examination 2019 and permit to the petitioner for appearing in U.P. Higher Judicial Service Examination 2019 on the basis of judging their upper age limit as on 14.06.2018.
(iii) Issue any such other and further writ order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iv) Award the cost of the writ petition against the contesting respondents."
Relevant Rule 8 (1) as well as Rule 12 of U.P. Higher Judicial Services Rules, 1975, is quoted herein below:
8. Number of appointments to be made -- (1) The Court, shall, from time to time, but not later than three years from the last recruitment, fix the number of officers to be taken at the recruitment keeping in view the vacancies then existing and likely to occur in the next two years.
12. 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 next following the year in which the notice inviting applications is published.
Provided that the upper age limit shall be higher by three years in case of candidates belonging to Scheduled Castes and Scheduled Tribes and such other categories as may be notified by the Government from time to time.
The contention of learned counsel for the petitioner is that Rule 8 (1), which provides for direct recruitment for filling-up the vacancies should be advertised not later than three years, is arbitrary. Every year vacancy should be advertised and Rule 12 with regard to the age limit to be judged as on January next following year in which the notice inviting application is published and, therefore, both the provisions are ultraviries to Article 14 of the Constitution.
The petitioner was enrolled with U.P. Bar Council on 3.5.2002. His date of birth in the High School certificate is stated be be 30.12.1970. The petitioner is an practising lawyer and according to Rule 5 (c) of Higher Judicial Service Rules, 1975 having put-in more than seven years of practice at Bar, is eligible for consideration for appointment as judicial officer. It is also contended that petitioner being OBC candidate was entitled to get the age relaxation of 3 years. As per proviso to Rule 12 his claim is not being considered only because the publication of vacancies in 2018 would mean that on 1.1.2019 the petitioner must not have crossed the age of 48 years, which infact the petitioner will cross, therefore, the cut off date for determination of age to be January of next year of the date of issuance of notice for recruitment, is arbitrary. It is further submitted that in all the recruitment rules the cut off date is normally the last date of filing of application and if that cut off date is taken, then the petitioner would be within the age limit prescribed for OBC candidate and would be entitled to participate in the selection. It is further submitted that last recruitment notice was issued in 2016, but the High Court did not publish any notice for recruitment in 2017. Had a notice for recruitment being issued in 2017 when admittedly there was vacancy, the petitioner would have been eligible for recruitment and since the High Court without any reason did not publish any vacancy for 2017 has acted arbitrarily and against the decision of the Supreme Court in Malik Mazhar Sultan and another vs. U.P. Public Service Commission & Others, reported in JT 2007 3 SC 352.
Sri Manish Goyal, learned counsel appearing for High Court submitted that before notification of vacancy in 2018 on two earlier occasions, the vacancies were notified once in 2012 and in 2016. If the petitioner had opted for appearing in 2012 and 2016, he would have been well within the eligibility criteria for being considered for selection, but he chose not to do so and now he is challenging the recruitment rules once he has become over age. It is further submitted that validity of aforesaid rules, which have been challenged by means of this writ petition, has already been upheld by this Court in the case of Suraj Bali Singh and Others vs. Registrar General High Court of Judicature at Allahabad in Writ-A No.20708 of 2012, decided on 5.8.2017. He submits that aforesaid decision was taken after considering the judgment in Malik Mazhar Sultan (supra) of the Supreme Court.
We have considered the submissions of learned counsel for the petitioner and learned counsel appearing for High Court.
Once the validity of the provisions under challenge has already been upheld by a Division Bench of this Court and no further argument has been raised to take contrary view the judicial discipline requires us to follow the aforesaid decision of the Division Bench and, therefore, no relief can be granted to the petitioner in this writ petition.
That apart no reason has been indicated as to what prevented the petitioner from appearing in recruitment process on earlier two occasions, namely, 2012 and 2016. On this ground also, we do not find it a fit case to interfere.
At this juncture, learned counsel for the petitioner has submitted that similar controversy in the case of Sandeep Gupta vs. High Court of Judicature at Allahabad through Registrar General, is pending consideration in Writ Petition (s) (civil) No.594/2016 before the Supreme Court.
That being the case, the petitioner can also approach the Supreme Court for the relief that is he seeking.
So far as we are concerned, the validity of the provisions challenged having being upheld, no relief can be granted. The writ petition lacks merit and it is, accordingly, dismissed.
Order Date :- 31.5.2018 Ajeet
(Abhai Kumar,J.) (Abhinava Upadhya,J.)