Admittedly, Illikkadan had crossed the age of 58½ years when a vacancy due to him had arisen and he was aggrieved by his non-consideration for elevation as a Judge of the High Court.
Consequently, he challenged the order in John K. Illikkadan v. Union of India, passed by a single-Judge bench of the high court whereby it was held that the position claimed by him was a constitutional post, to which he had no substantive right of appointment nor was there any violation of service conditions..
The order of the single-Judge was assailed on the following grounds:
There was no prescription for a maximum age of 58½ years even in the Memorandum of Procedure.
The Collegium had on an occasion made an exception for elevation of District Judges to another High Court.
The Respondent authorities (High Court itself) on the other hand, highlighted various recommendations made by the SC Collegium, containing a specific reference to the age limit of 58½ years, insofar as the District Judges are concerned.
Agreeing with the Respondents, the division bench said that the Chief Justice of the Kerala High Court was also in receipt of a letter dated 24.09.2004 from the Ministry for Law and Justice, which “specifically speaks of the Chief Justice of India having observed that the recommendations made to fill up the vacancies set apart for Judicial Officers would be considered, only of those Judicial Officers, who have not crossed the age limit of 58½ years.”
On facts, the bench noted that the Petitioner was 4th in the seniority list. Therefore, the vacancies to which he could possibly have been elevated arose on 01.11.2018, 18.01.2019, 08.05.2019 and 18.09.2019. However, since the Petitioner was born on 25.03.1960, he had crossed the 58½ years bar on 25.09.2018 and hence, he could have aspired for the first vacancy only.
“The petitioner’s date of birth is 25.03.1960 and he crosses 58½ years on 25.09.2018. Hence, if the age limit is applied he could aspire for only the first vacancy, which arose on 01.11.2018 and not even to the second vacancy. We also notice that the rule does not stand against the first in the seniority list, who would obviously be considered for the first vacancy. In such circumstances, we do not find any reason to entertain the writ appeal,” it observed.
With regards to the second ground raised by the Petitioner, the court observed that the same was a matter of discretion and that courts had no jurisdiction in the matter.