Alok Kumar vs High Court Of Delhi Thr Registrar General And Anr

G.S.Sistani, J

CM.APPL 2654/2018(Exemption) in W.P.(C) 603/2018

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

W.P.(C) 382/2018 & CM.APPL 1609/2018(stay)

W.P.(C) 603/2018 & CM.APPL 2653/2018(stay)

These two petitions have been filed by the petitioners under Article 226 of the Constitution of India. Both the writ petitions raise a common

question. In W.P.(C).603/2018, the petitioner seeks a direction in the nature of mandamus against the respondents thereby directing them to modify

the cut-off date for eligibility of candidates who have attained the age of 35 years (but not attained the age of 45 years) as on from 01.01.2017 to

01.01.2018 while inviting online applications w.e.f. 31.01.2018 vide notification dated 23.12.2017 with respect to filling up of vacancies in Delhi Higher

Judicial Service Examination, 2017.

Mr. Tiku, learned Senior Counsel appearing for the petitioner submits that the examination is for the vacancies pertaining to 2016 and 2017. He

submits that even in the past, i.e., in the year 2015, the notification was issued in the month of December as in the present case, when the notification

dated 23.12.2017 was published on 28.12.2017, fixed the cut-off date with respect to the age criteria as 01.01.2017 in terms of Rule 9(3) of the Delhi

Higher Judicial Service Rules, 1970. Mr. Tiku submits that, simply put, the effect of this cut-off date would be that a candidate who has attained the

age of 35 years post 01.01.2017 would not be eligible, while the examination would be conducted in April, 2018 and results would be declared much

later. In effect, there would be serious prejudice to the rights of a candidate who had applied for the post at a young age of 35 years, but may have

second thoughts by the time he is 37 plus as is likely to happen in the present case. He submits that while the object should be to encourage youngsters

to accept the post, on the other hand, the outer limit being 45 years, even a candidate who is 45 years on 01.01.2017 would be over 47 years by the

time the results are declared and in case he is declared successful, he may have also have second thoughts. Additionally, it would not be good for the

system to appoint a person at the age of 47 plus for only about 10 years, as the date of retirement is 58 years. Mr. Tiku further submits that the

submissions so made are to be considered in the light of the observations made by the Supreme Court of India in the case of Malik Mazhar Sultan(3)

and Another v. Uttar Pradesh Public Service Commission and Others, reported in (2008) 17 SCC 703, which direction was reiterated on 14.07.2015.

He has drawn the attention of the Court, more particularly, to paragraph 7 and the tabulation appearing therein. To buttress his argument that the

directions of the Supreme Court are, in fact, mandatory to the extent that the number of vacancies to be notified by the High Court is by 31st March,

advertisement inviting applications from eligible candidates is by 15th April. Mr. Tiku contends that in case the directions were so followed, such a

situation as in the present case would not arise. He submits that the previous examination was conducted in November, 2016 and the results were

declared in December, 2016, but the final result was declared as late as on 05.12.2017. Mr. Tiku submits that in case an examination is conducted this

year for the existing vacancies of 2018 and 2019 (subject to availability of infrastructure for the anticipated vacancies for the year 2019 having regard

to the fact that there are 10 retirements, 05 in 2018 and 05 in 2019 and there would be consequential elevation), at least the petitioners would not be

prejudiced.

Mr. Rao, learned counsel appearing for the respondents submits that the process with respect to the examination of 2015 was concluded on

05.02.2017 and immediately thereafter, an advertisement for the vacancies of the year 2016 and 2017 were published. He further explains that the

delay between declaration of result of the written examination and the final examination was for various administrative and unusual reasons which

may not happen in future. Mr. Rao points out that necessary amendment to minimum age and consequent amendment to Rule 9(3) of the Delhi Higher

Judicial Service Rules, 1970 is under active consideration of the Full Court.

We have heard the learned counsel for the parties. Prima facie, we are of the considered view that the issue raised by Mr. Tiku, learned Senior

Counsel for the petitioner requires consideration. More particularly, we are of the view that the effect of the present advertisement would result in

depriving candidates who have attained the age of 35 years post 01.01.2017 and would include such candidates who are 37 plus in the minimum age

criteria, and similarly in the outer age limit, the candidates who would be considered would be more than 47 years of age by the time the process is

completed, while the objective should be to encourage young candidates around the age of 35 years and the maximum age of 45 years. Presently

there is a likelihood that the judiciary would lose out many suitable candidates who would have second thoughts once having crossed a particular age.

At this stage, Mr. Rao seeks time to take instructions.

List on 27.02.2018.

Dasti to the parties under the signature of Court Master.