Point of Law: Validity of notification will have to be tested with reference to constitutional provisions and Business rules and not by their form or substance.

JUDGMENT :

(Satyen Vaidya, J.)

All these petitions were heard and are being decided together as common questions of facts and law are involved. Reference to respondents hereafter has been made in relation to the memorandum of parties in CWP No. 7125 of 2021.

2. Petitioners have prayed for declaring Clause-6 of the Himachal Pradesh Prosecution Department, Assistant District Attorney, Class-I (Gazetted), Recruitment and Promotion Rules, 2017 (for short “2017 Rules”) as ultra vires the Constitution of India. In alternative, a prayer has been made to issue direction to the respondents to relax 2017 Rules for the petitioners in so far as the prescription of maximum age therein is concerned. Clause-6 of 2017 Rules provides for age limit for recruitment to the post of Assistant District Attorneys (for short “ADA”) in the Prosecution Department as “ 35 years and below.”

3. Petitioners are Law Graduate and practicing Advocates. They are aspirants to be appointed as ADAs in the Prosecution Department of the State. In 2021, respondent No. 3 issued an advertisement No. 59/11-2021 inviting applications from desirous and eligible candidates for recruitment to 25 posts of ADAs, Class-I (Gazetted) (on contract basis). Candidates between 18 years to 35 years were eligible to apply and such age was to be reckoned as on 01.01.2021. All the petitioners had crossed the age of 35 years as on 01.01.2021 and hence were ineligible.

4. In the past, the selection process for recruitment to the posts of ADAs was conducted by respondent No. 3 in 2018-2019. Petitioner in CWP No. 7125 of 2021 had participated in the selection process. Though, he had qualified the written test, he could not finally make it to select list. As per petitioners, thereafter due to COVID-19 Pandemic, no selection process for the recruitment to the posts of ADAs was conducted during 2020 and in the meantime, all of them attained the age of 35 years.

5. Petitioners have prayed for declaring Clause-6 of 2017 Rules as ultra-vires the Constitution of India. It is submitted that the post of ADA is Class-I (Gazetted) post. The Government of H.P. had taken a decision as far back as on 22.9.1983 whereby the age for direct recruitment to all Class 1 posts except Himachal Administrative Services, Himachal Judicial Services and Himachal Police Services was prescribed as “ 45 years and below”. It is further submitted that for the posts of ADAs a separate class has been carved out without there being any nexus with the object sought to be achieved. Further, the prescription of lesser age for direct recruitment to the posts of ADAs has been targeted on the premise that the provision in this regard has been incorporated in the 2017 rules without adherence to the Rules of Business of the Government of Himachal Pradesh. Thus, according to the petitioners, the classification so drawn is irrational, arbitrary and discriminatory.

6. In alternative, petitioners have sought aid of Rule 18 of 2017 Rules which empowers the State Government to relax the rules in appropriate case(s). As per petitioners, they were denied the opportunity to participate in the selection process by extraordinary circumstances created by COVID-19 pandemic. It was contended that had “COVID-19” pandemic not been there, the selection process could have been initiated in the year 2020 and petitioners would have been eligible to participate.

7. On the other hand, respondents have contested the claim of the petitioners being untenable and meritless. It is submitted that after the appointment of ADAs in September, 2019 no requisition was there before respondent-3 till December, 2020 for filling-up the posts of ADAs and as such no process had been initiated in 2020 for filling-up such posts. According to respondents “COVID-19” pandemic cannot be blamed by the petitioners. 2017 rules including rule 6 thereof have also been defended an intra-vires. As per respondents, the Department of Personnel, vide its letter dated 20.04.2001 had issued instr