HIGH COURT OF DELHIversusDEVINA SHARMA

                         [2022] 2 S.C.R. 513                              513


                     HIGH COURT OF DELHI                                  A
                                  v.
                        DEVINA SHARMA
                   (Civil Appeal No 2016 of 2022)
                                                                          B
                          MARCH 14, 2022
 [DR. DHANANJAYA Y CHANDRACHUD, A. S. BOPANNA
              AND HIMA KOHLI, JJ.]
       Judiciary: Upper age limit of 32 years appearing for Delhi
judicial Service (DJS) examination and minimum age requirement            C
of 35 years for appearing for the Delhi Higher Judicial Service
(DHJS) examination – Validity of, challenged – Held: In regard to
the DJS examination 2022 – The High Court conducted the last
examination for recruitment to the DJS in 2019 – No examination
was held in 2020 for institutional reasons and in 2021 due to the         D
onset of the Covid-19 pandemic – Suggestions of the High Court
were accepted that candidates who would have fulfilled the upper
age limit of 32 years for years 2020 and 2021, would be eligible to
participate in the examination for the ensuing year 2022 – Hence,
the last date of receipt of applications forms were extended and
new date of examination were announced – In regard to DHJS                E
examination – Clause (1) of Art.233 stipulates that appointments of
persons, posting and promotion of District Judges shall be made by
the Governor of the State in consultation with the High Court
exercising jurisdiction in relation to the State – The Constitution
has prescribed the requirement to the effect that a person shall be       F
eligible for appointment as a District Judge only if he has been an
advocate or a pleader for at least seven years – What this means is
that a person who has not fulfilled the seven year norm is not eligible
– The Constitution does not preclude the exercise of the rule making
power by the High Courts to regulate the conditions of service or
appointment – The Constitution being silent in regard to the              G
prescription of a minimum age, the High Courts in the exercise of
their rule making authority are entitled to prescribe such a
requirement – The post of a District Judge is at a senior level in the
cadre – Age is not extraneous to the acquisition of maturity and
experience, especially in judicial institutions which handle real         H
                                 513
514            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A     problems and confront challenges to liberty and justice – The
      requirement that a candidate should be at least 35 years of age is
      intended to sub-serve this – Hence, there is no valid basis to hold
      that the requirement that a candidate for the DHJS should be at
      least 35 years of age is invalid – On a parity of reasoning given in
      regard to DJS examination, permission given to candidates to appear
B
      in 2022 examination who would have qualified in terms of upper
      age limit of 45 years during the recruitment years 2020 and 2021
      during which no examinations were held.
            Partly allowing the appeals, the Court
C           HELD: 1.1 The time schedule for conducting the
      recruitment process to the judicial service has been stipulated
      by the judgment of this Court in Malik Mazhar Sultan (3) vs Uttar
      Pradesh Public Service Commission. The object and purpose of
      the directions of this Court has been to ensure that the
      recruitment process for the judicial service is conducted on
D     schedule every year, subject to the rules of each High Court.
      The High Court of Delhi held its last examination for recruitment
      to DJS in 2019. Admittedly, no examination has been held in 2020
      or in 2021. The examination for 2020 could not be conducted
      since the process for 2019 was still to be completed. The
E     examination for 2020 could not be held due to the onset of the
      Covid-19 pandemic. In this backdrop, since the examination was
      not conducted for two recruitment years, the High Court has after
      considering the issue stated before this Court that as a one-time
      measure, this Court may accept the suggestion that candidates
      who would have qualified for the examinations were they to be
F     held on schedule for recruitment years 2020 and 2021 in terms
      of the rules as they then stood, may be permitted to appear for
      the ensuing examinations. [Para 18][522-G-H; 523-A-D]
            1.2 Having regard to the fact that the recruitment
      examination for DJS has been last held in 2019 and two recruitment
G     years have elapsed in the meantime, this Court observed that
      the suggestion of the High Court should be accepted for this
      year. The consequence of the acceptance of the suggestion by
      this Court, would be that candidates who would have fulfilled the

H
           HIGH COURT OF DELHI v. DEVINA SHARMA                        515


upper age limit of 32 years, for the recruitment years 2020 and        A
2021 would be eligible to participate in the examination for the
ensuing recruitment year 2022. The age bar which they would
now encounter is not of their own volition. The real element of
hardship faced by such candidates has been remedied by the High
Court and there is no reason for this court not to accept the
                                                                       B
suggestion. The examination cannot however, be postponed
indefinitely nor can the candidates who have applied be left in a
state of uncertainty. The existing candidates can have no
grievance by the widening of the competition. In order to facilitate
this exercise, the suggestion of the High Court that the last date
for the receipt of application forms shall be extended to 3 April      C
2022 and the examination shall be held on 24 April 2022 is
accepted. This court directed that no impediment shall be caused
in the conduct of the examination and no court shall issue any
order of stay at variance with or contrary to the above directions
of this Court. [Para 19][523-D-H]
                                                                       D
      2. In regard to the DHJS examination, the submission of
the appellants, to the effect that the prescription of a minimum
age would be contrary to the constitutional provision contained
in Article 233 of the Constitution, cannot be accepted. Article
233(2) of the Constitution stipulates that a person not already
in the service of the Union or of a State shall only be eligible to    E
be appointed a District Judge if he has been, for not less than 7
years, an advocate or a pleader and is recommended by the
High Court for appointment. Clause (1) of Article 233 stipulates
that appointments of persons, posting and promotion of District
Judges shall be made by the Governor of the State in                   F
consultation with the High Court exercising jurisdiction in
relation to the State. Article 235 entrusts to the High Court
control over the district courts and courts subordinate thereto
including the posting and promotion of and the grant of leave to
persons belonging to the judicial service to the State and holding
any post inferior to the post of District Judge. The Constitution      G
has prescribed the requirement to the effect that a person shall
be eligible for appointment as a District Judge only if he has
been an advocate or a pleader for at least seven years. What

                                                                       H
516            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A     this means is that a person who has not fulfilled the seven year
      norm is not eligible. The Constitution does not preclude the
      exercise of the rule making power by the High Courts to regulate
      the conditions of service or appointment. The silences of the
      Constitution have to be and are supplemented by those
      entrusted with the duty to apply its provisions. The Constitution
B
      being silent in regard to the prescription of a minimum age, the
      High Courts in the exercise of their rule making authority are
      entitled to prescribe such a requirement. Direct recruitment to
      the Higher Judicial Service is intended to be from members of
      the Bar who have sufficient experience. The post of a District
C     Judge is at a senior level in the cadre. Age is not extraneous to
      the acquisition of maturity and experience, especially in judicial
      institutions which handle real problems and confront challenges
      to liberty and justice. The High Courts are well within their
      domain in prescribing a requirement which ensures that
      candidates with sufficient maturity enter the fold of the higher
D
      judiciary. The requirement that a candidate should be at least
      35 years of age is intended to sub-serve this. Except for a short
      period when the requirement of a minimum age of thirty five
      was deleted, the Delhi High Court has followed the norm. The
      deletion of the minimum age requirement of 35 years in 2019
E     may have been guided by the need to attract a larger pool of
      applicants to DHJS. But the reinstatement of a minimum age
      requirement of 35 years is a matter of policy. This conforms to
      the recommendation of the Shetty Commission. Hence, there
      is no valid basis to hold that the requirement that a candidate
      for the DHJS should be at least thirty-five years of age is invalid.
F
      [Paras 26, 27][525-F-H; 526-A-F, H; 527-A-B]
            Malik Mazhar Sultan (3) v. Uttar Pradesh Public
            Service Commission (2008) 17 SCC 703; All India
            Judges Association v. Union of India (2002) 4 SCC
            274; All India Judges Association v. Union of India
G           (2002) 4 SCC 247 : [2002] 2 SCR 712; Hirandra
            Kumar v. High Court of Judicature at Allahabad (2020)
            17 SCC 401 : [2019] 2 SCR 608 – referred to.


H
               HIGH COURT OF DELHI v. DEVINA SHARMA                          517


                          Case Law Reference                                 A
(2008) 17 SCC 703                 referred to               Para 18
(2002) 4 SCC 274                  referred to               Para 25
[2002] 2 SCR 712                  referred to               Para 25
[2019] 2 SCR 608                  referred to               Para 25          B

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2016
Of 2022.
      From the Judgment and Order dated 08.03.2022 of the High Court
of Delhi at New Delhi in W.P. (C) No.3914 of 2022.                           C
        With
        Civil Appeal Nos. 2017-2020 of 2022.
        A. D. N. Rao, Sr. Adv., Gautam Narayan, Advs. for the Appellant.
      Devadatt Kamat, Ms. Amarjit Singh Chandhiok, Ms. Anitha                D
Shenoy, Dama Seshadri Naidu, Sr. Advs., Rajesh Inamdar, Pai Amit,
Ms. Pankhuri Bhardwaj, Ms. Ripul Swati, Ranjan Nikhil Dharnidhar,
Karan Dalal, Suryavir, Aditya Kapoor, Ms. Manika Goswamy, Ms.
Medha Tondon, Deepkaran Dalal, Vivek Singh, Namit Saxena, Manish
Rohilla, Advs. for the Respondent.                                           E
        The Judgment of the Court was delivered by
        DR. DHANANJAYA Y CHANDRACHUD, J.
        1. Leave granted.
       2. These appeals arise from orders of a Division Bench of the         F
High Court of Delhi dated 4 March 2022 and 8 March 2022. The petitions
before the High Court under Article 226 of the Constitution have raised
issues pertaining to the validity of:
        (i)    The upper age limit of 32 years for appearing for the Delhi
               Judicial Service1 examination; and                            G
        (ii)   The minimum age requirement of 35 years for appearing
               for the Delhi Higher Judicial Service2 examination.

1
    “DJS”
2
    “DHJS”                                                                   H
518            SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A            3. The High Court of Delhi issued notifications for conducting the
      examinations for DJS and DHJS on 23 February 2022. For the DJS, the
      last date for submission of forms is 20 March 2022 and the examination
      is scheduled to take place on 27 March 2022. For DHJS, the last date
      for submission of forms was 12 March 2022 while the date of the
      examination is 20 March 2022.
B
             4. The bone of contention pertains to Rule 14(c) of the Delhi
      Judicial Service Rules 1970. Un-amended Rule 14(c) stipulated that a
      candidate shall be eligible to appear at the examination if he is not more
      than 32 years of age on the 1st day of January following the date of
      commencement of the examination. The above rule was amended on 11
C     February 2022 so as to stipulate that a candidate shall be eligible to
      appear at the examination if he is not more than 32 years of age on the
      1st day of January of the year in which the applications for appointment
      are invited. The High Court of Delhi conducted the last examination for
      recruitment to the DJS in 2019. It is common ground that no examination
D     was held in 2020 for institutional reasons and in 2021 due to the onset of
      the Covid-19 pandemic.
             5. The grievance of the petitioners before the High Court is that
      candidates who would have qualified in terms of the upper age limit of
      32 years for DJS, as stipulated in Rule 14(c), would now cease to be
E     eligible by virtue of the fact that the examination is being held in March
      2022. In terms of amended Rule 14(c) they would have crossed the age
      of 32 years on the 1st day of January of the year in which the applications
      for appointment are invited. In other words, it has been urged that if the
      High Court had conducted the examination on schedule in 2020 and
      2021, such candidates would have qualified for the examination since
F     they were within the age limit of 32 years for the relevant year.
             6 . When the petition was moved before the High Court, the
      Division Bench by its interim order dated 8 march 2022 directed that the
      date for receiving applications shall be rescheduled to a date after the
      next date of hearing and the date of holding the examination shall also be
G     postponed. The proceedings were directed to be listed on 7 April 2022
      before the same Bench which was seized of an earlier writ petition, Writ
      Petition (Civil) No 3636 of 2022 after obtaining the orders of the Chief
      Justice. Effectively therefore, by the interim order of the High Court,
      the examination for DJS which was scheduled to take place on 27 March
H     2022 would stand postponed.
               HIGH COURT OF DELHI v. DEVINA SHARMA                            519
                [DR. DHANANJAYA Y CHANDRACHUD, J.]

       7. Aggrieved by the interim order of the High Court, the jurisdiction   A
of this Court under Article 136 of the Constitution has been invoked by
the High Court of Delhi on the administrative side.
       8. The earlier petition before the High Court related to the
recruitment process for DHJS which resulted in an interim order of the
Division Bench dated 4 March 2022. The backdrop of the grievance               B
before the High Court was that in 2019, the High Court had amended
the DHJS Rules by a notification dated 26 December 2019. Rule 9(3)
specifies the qualifications for direct recruits. The requirement of a
minimum age of 35 years was deleted by the notification of the High
Court dated 26 December 2019. Subsequently, by a notification dated 8          C
February 2022, Rule 9(3) was amended so as to stipulate the requirement
that the candidate must have attained the age of 35 years. Rule 9(3) also
provides that the candidate should not have attained the age of 45 years
on the 1st day of January of the year in which the applications for
appointment are invited. The submission is that under Article 233 of the
Constitution, the only qualification for being appointed as a District Judge   D
is continuous practice of seven years as an advocate or a pleader. Hence,
the submission is that though the Constitution does not prescribe a
minimum age limit for appointment as a District Judge, Rule 9(3)
introduces such a requirement which would be in breach of the
constitutional requirement.                                                    E
       9. The High Court by its interim order dated 4 March 2022 held
that since the minimum age limit had been reintroduced after a hiatus of
two years, the matter would require consideration. While directing that
the petition should be listed on 7 April 2022, the High Court has directed
that the date for filling up the online application forms should be extended   F
beyond the next date of hearing. Effectively, as a consequence of the
interim order of the High Court, the examination which was scheduled
to be held on 20 March 2022 would stand postponed. The High Court on
its administrative side is before this Court in proceedings under Article
136 of the Constitution.
                                                                               G
       10. On 11 March 2022, while issuing notice in the Special Leave
Petition3 relating to the DJS examination, this Court passed the following
order:

3
    SLP (C) No 4452 of 2022                                                    H
520               SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A              “The Court is convened through Video Conferencing.
               Heard learned senior counsel appearing on behalf of the petitioner
               as also the respondent, who has appeared in person.
               Issue notice.
B              The respondent, who appeared in person, accepts notice. The
               respondent is directed to file her response by 12.03.2022.
               The respondent claims that because of pandemic, she did not have
               opportunity to appear in the Delhi Judicial Services Examination
               for the last two years. She, accordingly, prays that as she has
C              crossed the prescribed age limit of 32 years in the process, she
               may be permitted to appear in the present examination.
               However, learned senior counsel appearing on behalf of the
               petitioner submits that approximately 5,700 candidates have applied
               for the said examination and the time schedule has already been
D              fixed for the same.
               Taking into consideration the fact that the time schedule of the
               above-mentioned examination has already been fixed by the Delhi
               High Court, we deem it appropriate to hear the matter and dispose
               of the same in accordance with law without stalling the
               examination process.
E
               However, taking into consideration the facts and circumstances
               of the instant case, we permit the respondent to submit her
               application for the aforesaid examination which shall remain subject
               to the outcome of this petition.
F              List the matter on 14.03.2022.
               The petitioner is directed to supply a copy of the petition to the
               respondent-in-person immediately.”
            11. Likewise, while entertaining the Special Leave Petitions4
      pertaining to the DHJS examination, this Court passed the following
G     order on 11 March 2022:
               “The Court is convened through Video Conferencing.
               Heard learned senior counsel appearing on behalf of the petitioner.

      4
H         SLP (C) Nos 4432-4435 of 2022
            HIGH COURT OF DELHI v. DEVINA SHARMA                               521
             [DR. DHANANJAYA Y CHANDRACHUD, J.]

      Issue notice.                                                            A
      Dasti, in addition, is permitted.
      It is noted that the respondents who preferred writ petitions before
      the High Court have not submitted any application for the Delhi
      Higher Judicial Services Examination, which is going to be
      conducted on 20.03.2022. The respondents moved the Delhi High            B
      Court straightway for relaxation of their age to appear in the above-
      mentioned examination. The High Court while issuing notice,
      directed to extend the date for filling up the online application
      form beyond the next date of hearing i.e. 07.04.2022.
      Having heard learned senior counsel appearing on behalf of the           C
      petitioner and taking into consideration the fact that already more
      than 1200 applications have been received for the aforesaid
      examination, we are prima facie of the view that it is not appropriate
      to extend the time limit which was prescribed.
      Hence, we direct the learned senior counsel for the petitioner to        D
      inform the respondents through mobile phone or e-mail to submit
      their applications within the time limit prescribed by the
      High Court i.e. 12.03.2022, which shall, however, remain subject
      to the outcome of these petitions. Learned senior counsel is further
      directed to inform the counsel for the respondents about the instant
                                                                               E
      order also.
      List these matters on 14.03.2022.”
      12. Following the interim order of this Court, the petitioners before
the High Court have appeared through learned counsel. In addition, this
Court is also seized of a number of intervention applications by persons       F
who are not before the High Court, but claim the benefit of the directions
contained in the interim orders dated 11 March 2022.
      13. We have heard Mr A D N Rao, learned senior counsel
appearing on behalf of the High Court of Delhi. On behalf of the
respondents and the intervenors, we have heard Mr Devadatt Kamat
                                                                               G
and Mr Amarjit Singh Chandhiok, learned senior counsel. The intervenors
have been represented in these proceedings by Mr Sidharth Luthra, Ms
Anitha Shenoy and Mr Dama Seshadri Naidu, learned senior counsel
and Mr Aditya Singh, Mr Amarjit Singh Chandhiok, Mr Ranjan Nikhil
Dharnidhar and Mr Deepkaran Dalal, learned counsel. Mr Anuj Sharma,
one of the intervenors has also appeared in-person.                            H
522             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A           14. We would deal with the issues pertaining to DJS and DHJS
      separately.
            15. In order to enable the Court to render a full and complete
      adjudication of the proceedings, the writ petitions5 before the High Court
      under Article 226 of the Constitution stand transferred to this Court. We
B     have had the benefit of the submissions urged on both the sides.
             16. At the outset, Mr A D N Rao, learned senior counsel appearing
      on behalf of the High Court of Delhi has stated that the High Court did
      not conduct the examination which was scheduled to be held in 2020
      and in 2021 for DJS. The examination for 2020 could not be held for
C     procedural reasons since the process for the earlier recruitment year,
      2019, had not been completed. As regards the examination for 2021, it
      has been stated by the learned senior counsel that the examination was
      not held due to the onset of the Covid -19 pandemic. In this backdrop,
      learned senior counsel submitted that candidates who would otherwise
      qualify in terms of the upper age limit of 32 years if the exams were held
D     in 2020 and 2021, would now become age barred since the examination
      is being held pursuant to the notification which was issued on 23 February
      2022.
             17. Having regard to the above situation, it has been submitted by
      Mr A D N Rao that this Court may, particularly having regard to the
E     interim order dated 11 March 2022, grant the same benefit to all
      candidates, who would have qualified for the examination, had the
      examination been conducted in 2020 and 2021 on the basis of the rules
      as they then stood. In order to effectuate this, it has been submitted on
      behalf of the High Court of Delhi that the last date for the acceptance of
F     applications may be suitably postponed by this Court, with the consequence
      that the dates for the examination may be rescheduled. The High Court
      has stated that if this Court were to accept the suggestion, a
      communication would be uploaded on the website of the High Court for
      the intimation of all prospective applicants so that candidates who would
      have been eligible during the recruitment years 2020 and 2021 may be
G     considered for the ensuing process as a one-on time measure.
             18. The time schedule for conducting the recruitment process to
      the judicial service has been stipulated by the judgment of this Court in

      5
       WP (C) No 3914 of 2022 & WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/
H     2022
               HIGH COURT OF DELHI v. DEVINA SHARMA                           523
                [DR. DHANANJAYA Y CHANDRACHUD, J.]

Malik Mazhar Sultan (3) vs Uttar Pradesh Public Service                       A
Commission6. The object and purpose of the directions of this Court
has been to ensure that the recruitment process for the judicial service is
conducted on schedule every year, subject to the rules of each High
Court. The High Court of Delhi held its last examination for recruitment
to DJS in 2019. Admittedly, no examination has been held in 2020 or in
                                                                              B
2021. The examination for 2020 could not be conducted since the process
for 2019 was still to be completed. The examination for 2020 could not
be held due to the onset of the Covid-19 pandemic. In this backdrop,
since the examination was not conducted for two recruitment years, the
High Court has after considering the issue stated before this Court
through the learned senior counsel that as a one-time measure, this Court     C
may accept the suggestion that candidates who would have qualified for
the examinations were they to be held on schedule for recruitment years
2020 and 2021 in terms of the rules as they then stood, may be permitted
to appear for the ensuing examinations.
       19. Having regard to the fact that the recruitment examination for     D
DJS has been last held in 2019 and two recruitment years have elapsed
in the meantime, we are of the view that the suggestion of the High
Court should be accepted for this year. The consequence of the
acceptance of the suggestion by this Court, would be that candidates
who would have fulfilled the upper age limit of 32 years, for the             E
recruitment years 2020 and 2021 would be eligible to participate in the
examination for the ensuing recruitment year 2022. The age bar which
they would now encounter is not of their own volition. The real element
of hardship faced by such candidates has been remedied by the High
Court and there is no reason for this court not to accept the suggestion.
                                                                              F
The examination cannot however, be postponed indefinitely nor can the
candidates who have applied be left in a state of uncertainty. The existing
candidates can have no grievance by the widening of the competition. In
order to facilitate this exercise, we accept the suggestion of the High
Court that the last date for the receipt of application forms shall be
extended to 3 April 2022 and the examination shall be held on 24 April        G
2022. We direct that no impediment shall be caused in the conduct of the
examination and no court shall issue any order of stay at variance with
or contrary to the above directions of this Court.

6
    (2008) 17 SCC 703                                                         H
524                   SUPREME COURT REPORTS                        [2022] 2 S.C.R.


A            20. A communication of the modified dates in the above terms
      shall be placed on the website of the High Court of Delhi.
               Delhi Higher Judicial Service
             21. The challenge before the High Court in the writ petitions7
      pertains to the determination of a minimum age requirement of 35 years
B
      for appearing for the Higher Judicial Service. Mr Amarjit Singh Chandhiok,
      learned senior counsel appearing on behalf of the petitioners before the
      High Court submits that:
               (i)      Article 233 of the Constitution does not contain any
                        requirement of a minimum age and the only requirement is
C
                        that in order to qualify for appointment as District Judge, a
                        person should have been an advocate or a pleader for not
                        less than 7 years;
               (ii)     No minimum age requirement is specified for appointment
                        to the judicial service as a consequence of which, candidates
D
                        who complete 10 years of service in the judicial service
                        would be eligible for being appointed to the Higher Judicial
                        Service before they attain the age of thirty five;
               (iii)    The High Court itself had removed the minimum age
                        requirement of 35 years in 2019 which has been reintroduced
E
                        in February 2022; and
               (iv)     Persons, such as the petitioners before the High Court should
                        therefore be given an opportunity of appearing for the
                        examinations for the reason that until the rules were
                        modified in February 2022, they would have been eligible
F
                        to appear for the examination if it was held at the material
                        time in 2020 and 2021.
             22. The submission which has been urged by Mr Chandhiok,
      learned senior counsel has been also adopted by Mr Sidharth Luthra,
      Ms Anitha Shenoy and Mr Dama Seshadiri Naidu, learned senior counsel
G
      as well as the counsel appearing on behalf of the intervenors and the
      intervenor in-person.
            23. Mr A D N Rao, learned senior counsel appearing on behalf of
      the High Court has opposed the submission.
      7
H         WP (C) Nos 3636/2020, 3650/2022, 3665/2022 & 3684/2022
            HIGH COURT OF DELHI v. DEVINA SHARMA                                525
             [DR. DHANANJAYA Y CHANDRACHUD, J.]

      24. In order to consider the tenability of the submission, it must be     A
noted at the outset that the First National Judicial Pay Commission,
commonly known as the Shetty Commission, recommended the
introduction of the requirement that for direct recruitment to the cadre
of District Judges, candidates should be between the age of 35 and 45
years with an upper age relaxation of three years for SC/ST candidates.
                                                                                B
Paragraph 10.93 of the recommendations of the Shetty Commission is
extracted below:
      “…we recommend that the candidates for direct recruitment to
      the cadre of District Judges should be between 35 and 45 years
      and the upper age may be relaxed by 3 years for SC/ST
      candidates.”                                                              C

        25. The recommendations of the Shetty Commission were initially
followed by an order of a three-Judge Bench of this Court in All India
Judges Association vs Union of India8. By the order of this Court, the
States and the Union Territories to whom a copy of the report had been
submitted were directed to submit their responses to the Union of India         D
expeditiously. Eventually, the report of the Shetty Commission resulted
in the judgment of a three-Judge Bench of this Court in All India Judges
Association vs Union of India9. The rules of several High Courts provide
that for recruitment to the Higher Judicial Service, the candidate should
be of a minimum age of 35, with a maximum age limit of 45 years. For            E
instance, the rules pertaining to the UP Higher Judicial Service were
noticed in a decision of a two-Judge Bench of this Court in Hirandra
Kumar vs High Court of Judicature at Allahabad10. The prescription
of a rule providing for a minimum age requirement or maximum age for
entry into service is essentially a matter of policy. After noticing the
earlier precedents on the subject, this Court in Hirandra Kumar (supra)         F
observed that the determination of cut-offs lies in the realm of policy.
       26 . The submission of the appellants, to the effect that the
prescription of a minimum age would be contrary to the constitutional
provision contained in Article 233 of the Constitution, cannot be accepted.
Article 233(2) of the Constitution stipulates that a person not already in      G
the service of the Union or of a State shall only be eligible to be appointed
a District Judge if he has been, for not less than 7 years, an advocate or
8
  (2002) 4 SCC 274
9
  (2002) 4 SCC 247
10
   (2020) 17 SCC 401 (“Hirandra Kumar”)                                         H
526             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A     a pleader and is recommended by the High Court for appointment. Clause
      (1) of Article 233 stipulates that appointments of persons, posting and
      promotion of District Judges shall be made by the Governor of the State
      in consultation with the High Court exercising jurisdiction in relation to
      the State. Article 235 entrusts to the High Court control over the district
      courts and courts subordinate thereto including the posting and promotion
B
      of and the grant of leave to persons belonging to the judicial service to
      the State and holding any post inferior to the post of District Judge. The
      Constitution has prescribed the requirement to the effect that a person
      shall be eligible for appointment as a District Judge only if he has been
      an advocate or a pleader for at least seven years. What this means is
C     that a person who has not fulfilled the seven year norm is not eligible.
      The Constitution does not preclude the exercise of the rule making power
      by the High Courts to regulate the conditions of service or appointment.
      The silences of the Constitution have to be and are supplemented by
      those entrusted with the duty to apply its provisions. The Constitution
      being silent in regard to the prescription of a minimum age, the High
D
      Courts in the exercise of their rule making authority are entitled to
      prescribe such a requirement. Direct recruitment to the Higher Judicial
      Service is intended to be from members of the Bar who have sufficient
      experience. The post of a District Judge is at a senior level in the cadre.
      Age is not extraneous to the acquisition of maturity and experience,
E     especially in judicial institutions which handle real problems and confront
      challenges to liberty and justice. The High Courts are well within their
      domain in prescribing a requirement which ensures that candidates with
      sufficient maturity enter the fold of the higher judiciary. The requirement
      that a candidate should be at least 35 years of age is intended to sub-serve
      this. Except for a short period when the requirement of a minimum age of
F
      thirty-five was deleted, the Delhi High Court has followed the norm.
             27. In the circumstances, we are of the view that there is no merit
      in the submission which has been urged on behalf of the petitioners
      before the High Court and the intervenors who have not fulfilled the age
      requirement of 35 years. Though for a short period of about a year, the
G     High Court had deleted the requirement of a minimum age of 35 years
      for entry into the Higher Judicial Service, the High Court has set right
      the rule so as to bring it into conformity with the recommendations of the
      Shetty Commission. The deletion of the minimum age requirement of 35
      years in 2019 may have been guided by the need to attract a larger pool
H     of applicants to DHJS. But the reinstatement of a minimum age
                HIGH COURT OF DELHI v. DEVINA SHARMA                            527
                 [DR. DHANANJAYA Y CHANDRACHUD, J.]

requirement of 35 years is a matter of policy. This conforms to the             A
recommendation of the Shetty Commission. Hence, there is no valid
basis for this court to hold that the requirement that a candidate for the
DHJS should be at least thirty-five years of age is invalid. We do not
find any merit in the challenge which has been urged on behalf of the
appellants to that extent.
                                                                                B
       28. During the course of the hearing, this Court has been apprised
of the fact that several applicants for the higher judicial service
examination would have qualified in terms of the upper age limit of 45
years in 2020 or, as the case may be, 2021. As a matter of fact, Mr A D
N Rao indicates that he has instructions to the effect that some of those
candidates may already have or would be in the process of moving                C
petitions before the High Court. The reasons which have weighed with
this Court in allowing the High Court, as a one-time measure, to permit
candidates for the DJS examination who had qualified in terms of the
upper age limit of 32 years during the recruitment years 2020 and 2021,
should on a parity of reasoning be extended to candidates for the DHJS          D
examination who would have qualified in terms of the upper age limit of
45 years during the recruitment years 2020 and 2021 during which no
examinations could take place for the reasons which have been noticed
earlier.
      29. In order to obviate any further litigation and uncertainty, we        E
permit the High Court as a one-time measure to allow those candidates
who were within the age cut-off of 45 years during the recruitment
years 2020 and 2021 to participate in the ensuing DHJS examinations.
       30. For the Delhi Higher Judicial Service, the last date for the
receipt of applications shall stand extended to 26 March 2022 while the         F
examination shall be held on 3 April 2022, in those terms as stated before
this court by senior counsel representing the High Court.
      31. The High Court of Delhi shall upload a corrigendum indicating
the above relaxation on its website.
       32. The appeals are partly allowed in the above terms. The writ          G
petitions before the High shall stand disposed of.
       33. Pending applications, if any, stand disposed of.


Devika Gujral                                         Appeals partly allowed.
                                                                                H