Point of law : Article 309 of the Constitution of India deals with the recruitment and conditions of service of persons serving the Union or a State. The Article 309 provides the competence for the Governor of a State or such person as he may direct to make the rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the State. Article 233 of the Constitution of India deals with the appointment of District Judges.

JUDGMENT :

Ashutosh Srivastava, J.

1. Heard Sri Ashutosh Mishra, learned counsel for the petitioners and Sri Ashish Mishra, learned counsel, who represents the High Court, Respondent No.1. The learned Standing Counsel has accepted notice of the writ petition on behalf of the Respondent No.2.

2. Sri Ashish Mishra, learned counsel for the respondent High Court has filed counter affidavit. Learned counsel for the petitioners does not want to file rejoinder affidavit. We, therefore, proceed to decide the writ petition on merits.

3. The subject matter of the writ petition relates to the process of Direct Recruitment to the U.P. Higher Judicial Services 2018 (Part II). The Allahabad High Court issued a Notification dated 12.11.2018 inviting applications for direct recruitment to the Uttar Pradesh High Judicial Service 2018 (Part-II) against 59 vacancies (SC-08, ST-01, OBC-16 and Unreserved-34) in the pay scale of Rs.51550-1230-58930-1380-63070 from Advocates having not less than 7 years standing as on the last date fixed for the submission of application forms, who must have attained the age of 35 years and must not have attained the age of 45 years as on 01.01.2019. The age limit was relaxed by 3 years in case of SC/ST/OBC category candidates, but such candidates must not have attained the age of 48 years as on 01.01.2019. 20% horizontal reservation for women candidates belonging to the State of U.P. only was provided. The applications were required to be filed online. A preliminary examination (objective type) was to be held at Prayagraj (Allahabad) on 03.02.2019. Both Advocates practicing within the State of U.P. and outside the State of U.P. were eligible to apply, but after obtaining requisite forwarding from the District and Sessions Judge/Registrar General/Registrar of the High Court/Secretary General of the Supreme Court as applicable.

4. All the petitioners, who are five in number, although enrolled with the Bar Council of U.P. are members of the M.P. Judicial Services and working as Judicial Officers in the State of M.P. under the supervision of the M.P. High Court at Jabalpur. The petitioners are aggrieved by Rule 5 of the U.P. Higher Judicial Service Rules, 1975 insofar as it bars the Judicial Officers from participating in the recruitment process for filing up the vacancies by direct recruitment.

5. It is contended on behalf of the petitioners that the Rule 5 of the 1975 Rules is violative of the fundamental rights of the petitioners and the source of direct recruitment cannot be restricted to practicing Advocates only. The petitioners were once practicing Advocates and later on got selected as Judicial Officers and otherwise satisfy the eligibility criteria laid down in the notification dated 12.11.2018 issued for filing up the vacancies. The 1975 Rules are liable to be declared unconstitutional to the extent it excludes the persons possessing requisite experience in the field of law of more than 7 years cumulatively as an Advocate and as a Judicial Officer for being considered eligible to appear in the U.P.H.J.S. Exams.

6. For appreciating the arguments raised on behalf of the writ petitioners, it would be appropriate to refer to Rule 5 of the U.P. Higher Judicial Service Rules 1975, which is reproduced as under:

“5. Sources of recruitment. The recruitment to the Service shall be made

(a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test.

(b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;

(c) by direct recruitment from amongst the Advocates of not less than seven years standing as on the last date fixed for the submission of application forms.

7. A perusal of the Rule 5 of the 1975 Rules reveals that the source of recruitment to the U.P.H.J.S. is by promotion as also by direct recruitment. The source of recruitment by