Hon'ble Rohit Ranjan Agarwal,J.
The writ petition has been filed to challenge the advertisement dated 17.12.2019 in regard to seven vacancies of the year 2009 of Scheduled Caste category remaining unfilled.
Learned counsel for the petitioners submit that the seven vacancies belonging to the Scheduled Caste category of recruitment year 2009 remained unfilled. The same having been added in the present recruitment drive. The petitioners are now over aged as would be attaining to age of more than 48 years as on 01.01.2021. Had the recruitment for these vacancies held earlier, they would have been entitled to appear in the selection process.
Sri Ashish Mishra, learned counsel appearing for the respondents submits that it was pursuant to the judgment of Supreme Court in Civil Appeal No.1956-1957 of 2015, Nawal Kishore Mishra and others vs. High Court of Judicature at Allahabad and others, that the eleven unfilled vacancies of reserved categories for the recruitment year 2009 were added in the advertisement dated 17.12.2020.
We have heard the rival submissions of the parties and perused the material on record.
Clause (2) of the advertisement provides that a candidate must not have attained the age of 45 years as on 01.01.2021, while relaxation of three years has been given to the candidates belonging to the SC/ST/OBC category. As all the petitioners in the present petition have crossed the upper limit of age fixed in the advertisement, no interference is required. This Court in Writ A No.1931 of 2021 (Munendra Singh vs. High Court of Judicature at Allahabad and Another) decided on 08.02.2021 had considered Rule 12 of Uttar Pradesh Higher Judicial Service Rules, 1975 (in short "Rules of 1975") and held as under :
"As per the rule, one 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. The petitioner being Other Backward Class candidate, is entitled for three years' relaxation in age but as per the rules, he would be over aged on 01.01.2021. It is for the reason that he would be attaining the age of 48 years as on 01.01.2021 and thus not entitled for appearing in the selection as per rule 12 of the Rules of 1975, as amended.
Accordingly, we find no force for challenge to the clause of 'age' given in the advertisement as being in consonance to Rule 12 of Rules of 1975."
The constitutional validity of Rules 8(1) and 12 of Rules of 1975 was under challenge before the Supreme Court in the case of Hirandra Kumar vs. High Court of Judicature at Allahabad and Another 2019 SCC Online SC 254 wherein the Apex Court while upholding the validity, held as under :
"19. The real issue is as to whether the decision in Malik Mazhar Sultan (supra) can be construed as leading to a vested right in a candidate who applies for recruitment to the HJS to assert that they may be granted an age relaxation by virtue of the fact that between the last date of recruitment and the current, the candidate has crossed the prescribed age limit.
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21. The submission which has been urged in these proceedings is that the prescription "of not later than three years" in Rule 8 and of the upper age limit in Rule 12 is ultra vires and arbitrary. The validity of both Rules 8 and 12 has been addressed in decisions rendered by the Division Benches of the Allahabad High Court. The constitutional validity of Rule 8 has been upheld in Suraj Bali Singh (supra). The same submission that has been urged before this Court was considered in that decision by the Division Bench.
22. A Special Leave Petition against the judgment in Suraj Bali Singh (supra) was withdrawn on 4 August 2017. The validity of Rule 12 has been upheld by another Division Bench of the Allahabad High Court in Sanjay Agarwal (supra).
23. The legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut-off or age limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.
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30. These judgments provide a clear answer to the challenge. The Petitioners and the Appellant desire that this Court should roll-back the date with reference to which attainment of the upper age limit of 48 years should be considered. Such an exercise is impermissible. In order to indicate the fallacy in the submission, it is significant to note that Rule 12 prescribes a minimum age of 35 years and an upper age limit of 45 years (48 years for reserved candidates belonging to the Scheduled Castes and Tribes). Under the Rule, the age limit is prescribed with reference to the first day of January of the year following the year in which the notice inviting applications is published. If the relevant date were to be rolled back, as desired by the Petitioners, to an anterior point in time, it is true that some candidates who have crossed the upper age limit Under Rule 12 may become eligible. But, interestingly that would affect candidates who on the anterior date may not have attained the minimum age of 35 years but would attain that age under the present Rule. We are adverting to this aspect only to emphasise that the validity of the Rule cannot be made to depend on cases of individual hardship which inevitably arise in applying a principle of general application. Essentially, the determination of cut-off dates lies in the realm of policy. A court in the exercise of the power of judicial review does not take over that function for itself. Plainly, it is for the Rule making authority to discharge that function while framing the Rules.
31. We do not find any merit in the grievance of discrimination. For the purpose of determining whether a member of the Bar has fulfilled the requirement of seven years' practice, the cut-off date is the last date for the submission of the applications. For the fulfillment of the age criterion, the cut-off date which is prescribed is the first day of January following the year in which a notice inviting applications is being published. Both the above cut-off dates are with reference to distinct requirements. The seven year practice requirement is referable to the provisions of Article 233(2) of the Constitution. The prescription of an age limit of 45 years, or as the case may be, of 48 years for reserved category candidates, is in pursuance of the discretion vested in the appointing authority to prescribe an age criterion for recruitment to the HJS."
In view of the above, as 11 unfilled vacancies of reserved categories of 2009 were included in the present advertisement, and the question of age limit in regard to it has already been dealt with by this Court as well as Apex court in the case of Munendra Singh (supra) and Hirandra Kumar (supra), the writ petition fails and is accordingly dismissed.
Order Date :- 17.2.2021 KA