Milap Chand Sharma vs State of H.P. and Others

P.D. Desai, C. J.

The question raised in this petition relates to the true and proper interpretation of Clause 3 of Rule 5 of the Himachal, Pradesh Judicial Service Rules, 1973 (hereinafter called "the Rules").

Rule 5, which occurs in Part-Ill under the heading "METHOD OF RECRUITMENT", prescribed, inter alia, the eligibility qualifications. Clause 3 of the said rule, which occurs under the sub-heading "QUALIFICATION", reads as under:

No person, who is more than thirty years or is less than twenty-one years of age, on the 1st of January of the year in which the Commission invites applications for the competitive examination for recruitment to the Service shall be eligible to appear in the competitive examination:

Provided that:

(a) the maximum age limit:

(i) for an advocate who has practised at Bar for a minimum period of four years; or (ii) for an official, who possesses Professional Degree in Law ami is serving on the establishment of the High Court or any Court subordinate thereto in the State of Himachal Pradesh or in the Himachal Pradesh Government Secretariat or in offices subordinate thereto, and has served on the said establishment or under the State Government or partly on the said establishment and partly under the State Government for a minimum aggregate of four-years, shall be 40 years.

Note.-An incumbent who appears in the Competitive Examination as an advocate with four years practice at the bar with relaxed age-limit, shall not become ineligible for subsequent Competitive Examination if he is selected as Assistant Public Prosecutor under the Government and has joined service under the Government as such. The maximum age limit of 40 years shall, however, be applicable in this case too.

Explanation :

(a) For the purposes of this sub-rule, the expression "High Court" would include the erstwhile Coort of Judicial Commissioner of Himachal Pradesh and the Himachal Bench of the Delhi High Court.

(b) For the purposes of computing the period of four years'' practice at the Bar referred to in clause (a) avove, the Government may, in consultation with the High Court include the period during which a person had served as Subordinate Judge on temporary basis as a result of the competitive examination held by the Commission.

(c) A candidate belonging to a Scheduled Caste, Scheduled Tribe, or Backward Class will be entitled to deduct from his age such period as may from time to time, be allowed by the Government for entry into service, for such candidates.

On a bare reading of the enacting or main part of Clause 3 it is apparent that it prescribes the minimum and maximum age of a candidate seeking to appear in the competitive examination for recruitment to the Service. The eligibility on the basis of age is required to be determined by reference to "the 1st of January of the year in which the Commission invites applications for the competitive examination for recruitment to the Service". In other words, it is on the day so specified that the candidate must not be more than thirty or less than twenty-one years of age. The proviso is in the nature of a relaxation clause and it, inter alia, provides that in the case of an advocate, who has practised at the Bar for a minimum period of four years the maximum age limit shall be forty years. The proviso has to be read along with the main or enacting part and, accordingly, the benefit of relaxation in age limit will be available to an advocate, who would be otherwise ineligible if he has completed thirty years of age, if he has practised at Bar for a minimum period of four years on the 1st of January of the year in which the Commission invites applications for the competitive examination. It cannot be overlooked that the true function of a proviso ordinarily is to except something out of the enactment or to qualify something enacted therei.i and that a proviso is ordinarily not to be treated as if it were an independent enacting clause. It is, therefore, not possible to de-link the proviso from the main part of Clause 3 and to read it independently and, on that basis, to take the view that the requirement as to the maximum age should be held to have been satisfied if the candidate has completed four years of practice at the Bar on the day of the issue of the advertisement or on the day on which the competitive examination is to take place.

There is no substance also in the challenge to the constitutional validity of Clause 3. The classification of advocates is based on an intelligible differentia and there is a clear nexus in their case between the date with reference to which the eligi-bility on the basis of the maximum age is to be determined and the condition relating to its relaxation has to be satisfied.

For the foregoing reasons, there being no substance in the writ petition, it is summarily rejected.