Point of Law : Requirement of minimum age of 35 years for a candidate for Higher Judicial Service is a valid requirement and it is in conformity with the recommendations of the "Shetty Commission.

JUDGEMENT :

Sudhanshu Dhulia, J.

Heard Ms. Pooja Agarwal, petitioner-in-person. Also heard Mr. U.K. Nair, learned senior standing counsel, Gauhati High Court, who appears for the respondents.

2. By means of the present petition, the petitioner has challenged the constitutional validity of the Assam Judicial Service Rules, 2003 (hereinafter referred to as ‘Assam Rules’), more particularly Rule 7, by which a minimum age of 35 years and a maximum age of 45 years has been prescribed as an essential qualification for appointment to Higher Judicial Service in Assam.

3. The main argument of the petitioner before this Court is that Article 233 of the Constitution of India prescribes the qualification for appointment of District Judges, where there is no mention of minimum age of 35 years as a qualification for appointment as a District Judge. Consequently, the State cannot bring the age as a qualification in its Rules, as that would be against the constitutional provision. It has also been argued before us that in any case, prescribing a minimum age for Higher Judicial Service is violative of Article 14 of the Constitution of India. The judgment of the Hon’ble Supreme Court in Madras Bar Association Vs. Union of India & Anr., reported in 2021 SCC OnLine SC 463 is relied by the petitioner for this purpose.

4. Mr. U.K. Nair, learned senior counsel representing the Gauhati High Court though submits that the question before this Court is no longer resintegraas a decision on the said subject has recently been given by the Supreme Court in the case of High Court of Delhi -Vs-Devina Sharma, reported in 2022 SCC OnLine SC 316 and he would thus urge that this petition be decided in the light of the decision of the Apex Court in Devina Sharma.

5. In Devina Sharma, interalia,the validity of a similar provision in Delhi Judicial Service Rules, 1970 were under challenge before the Supreme Court in which the Apex Court had upheld the validity of the Rules (Delhi Rules), which prescribed a minimum age of 35 years for direct recruitment to Delhi Higher Judicial Service. It is an admitted position that the present Rules under challenge are exactly the same as were under challenge before the Apex Court.

6. The Apex Court while upholding the validity of the minimum age in the Delhi Rules in Devina Sharma, discussed the provisions of Article 233 as well as Article 235 of the Constitution of India. Whereas Article 233(2) of the Constitution stipulates that a person will be eligible to be appointed as 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, Article 233(1) prescribes that appointment 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 that State. This provision has to be read with Article 235, which also mandates that the control over District Courts and Courts subordinate thereto including the posting, promotion, grant of leave of person belonging to Judicial Service of the State shall vests in the High Court. Merely because the Constitution is silent on the minimum age would not mean that those entrusted with the Rule making power cannot make such provision. Thus, the Apex Court held as under:-

“26. .....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 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 Courts in