Jharkhand High Court
Prem Chand Kumar vs The State Of Jharkhand Through The ... on 21 June, 2018
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 469 of 2015
With
I.A. No. 8309 of 2016
With
I.A. No. 3947 of 2017
With
I.A. No. 2169 of 2018
Prem Chand Kumar, Son of Late Puran Barik, Resident of Bakshi Compound,
Bariatu, P.O. & P.S. Bariatu, District- Ranchi, Jharkhand ... Appellant
-Versus-
1. The State of Jharkhand through the Secretary, Personnel and
Administrative Reforms, Government of Jharkhand, Project Building,
Dhurwa, Ranchi, P.O. Dhurwa, P.S. Jagarnathpur, District- Ranchi,
Jharkhand
2. The Secretary, Department of Human Resource & Development,
Government of Jharkhand, Project Building, Dhurwa, Ranchi, P.O. Dhurwa,
P.S. Jagarnathpur, District- Ranchi, Jharkhand
3. The Jharkhand Public Service Commission, represented through its
Secretary, Circular Road, Ranchi, P.O.- G.P.O., P.S.- Lalpur, District- Ranchi,
Jharkhand
4. The Controller of Examination, Jharkhand Public Service Commission,
Circular Road, Ranchi, P.O.- G.P.O., P.S.- Lalpur, District- Ranchi, Jharkhand
... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Sanjeev Thakur, Advocate
For the Respondent-State : Mr. Jai Prakash, A.A.G.
Mr. Rishi Pallava, A.C. to A.A.G.
For the Respondent-JPSC : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Prince Kumar, Advocate
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28/ Dated : 21st June, 2018
Oral Order
Per D.N. Patel A.C.J.
1. This Letters Patent Appeal has been preferred by the original petitioner whose writ petition being W.P.(C) No. 6512 of 2013 was dismissed by the learned Single Judge vide judgment and order dated 4 th August, 2015, whereby, the prayer of this appellant (original petitioner) for declaring his result 2 and considering his candidature for 4th Combined Civil Service Examination was not accepted by the learned Single Judge and, hence, the original petitioner has preferred the present Letters Patent Appeal.
2. Factual Matrix:
● On 16th August, 2010, public advertisement no. 07/2010 was issued by the respondents for holding 4th Combined Civil Service Examination by the Jharkhand Public Service Commission.
● This appellant (original petitioner) applied for the post of Sub-Divisional Officer.
● The cut-off date to submit certificate for Mains examination was 9 th March, 2012.
● As per the advertisement, Residential Certificate, issued by an officer, not below the rank of, Sub-Divisional Officer, was to be given by the candidate on or before the cut-off date i.e. 9th March, 2012.
● This appellant supplied Residential Certificate issued by a Circle Officer, who is below the rank of Sub-Divisional Officer.
● This appellant corrected his mistake and gave Residential Certificate issued by the Sub-Divisional Officer at the time of his interview i.e. on 1st November, 2012 i.e. after the cut-off date.
● As the Residential Certificate was not given on or before 9 th March, 2012, the result of this appellant was not published or declared by the Jharkhand Public Service Commission and, hence, this appellant preferred a writ petition being W.P.(C) No. 6512 of 2013, which was dismissed by the learned Single Judge vide judgment and order dated 4th August, 2015 and, hence, this appellant (original petitioner) has preferred the present Letters Patent Appeal challenging the conditions attached with the public advertisement, after 3 appearing in the Preliminary Examination and after appearing in the Mains Examination and after appearing in the Interview.
3. Arguments canvassed by the learned counsel for the appellant:
● Learned counsel for the appellant submitted that in fact the Residential Certificate issued by the Circle Officer dated 20th July, 2010 was already submitted prior to the cut-off date i.e. 9th March, 2012.
● It is further submitted by the learned counsel for the appellant that insertion of very condition in the public advertisement especially Clause no. 28 (i) which is at Annexure-12 to the memo of this Letters Patent Appeal is unconstitutional, in view of the decision rendered by the Full Bench of this Court reported in 2003 (1) JCR 3 (Jhr.) (Special Bench). This aspect of the matter has not been properly appreciated by the learned Single Judge and, hence, the judgment and order delivered by the learned Single Judge deserves to be quashed and set aside.
● It is also submitted by the learned counsel for the appellant that this appellant is a Scheduled Tribe category candidate and, therefore, he can submit Residential Certificate even after the cut-off date as per the decision rendered by the Hon'ble Supreme Court reported in (2016) 2 JBCJ 19 equivalent to (2016) 4 SCC 754.
● It is further submitted by the learned counsel for the appellant that chance to rectify the mistake or error was not given to this appellant. There is estoppel on the part of the respondents because they have allowed this appellant to appear in the Preliminary Examination and thereafter in the Mains Examination and thereafter in the Interview.
● It is further submitted by the learned counsel for the appellant that this condition is attached only in the 4 th Combined Civil Service Examination, 4 whereas, in the 5th and 6th Combined Civil Service Examinations, this condition has already been omitted by the respondents.
● It is further submitted by the learned counsel for the appellant that as per Clause 6 of Annexure-6, at the time of interview the certificate can be produced. This condition was applied with by this appellant. Even otherwise also, the certificate given by the Sub-Divisional Officer is based upon the certificate given by the Circle Officer. Number of the Circle Officer's Certificate has been mentioned in the Certificate issued by the Sub-Divisional Officer. The aforesaid aspects of the matter have not been properly appreciated by the learned Single Judge and, hence, the judgment and order delivered by the learned Single Judge in W.P.(C) No. 6512 of 2013, dated 4 th August, 2015 deserves to be quashed and set aside.
● It is further submitted by the learned counsel for the appellant that even after the final result of the 4th Combined Civil Service Examination is published by the order of the Court, the result has been revised by the Jharkhand Public Service Commission.
4. Arguments canvassed by the learned counsel for the State-
Additional Advocate General:
● It is submitted by the learned Additional Advocate General of the State that 4th Combined Civil Service (Mains) Examination was conducted in the year 2012, thereafter result has been published and candidates have been appointed and by now their services have also been confirmed in accordance with law, thereafter 5th Combined Civil Service Examination has also been conducted and if there is any vacancy, which was left over, is added in 6th Combined Civil Service Examination. 5 th Combined Civil Service Examination is over, result has been published and selected candidates have also been 5 appointed and now 6th Combined Civil Service Examination is in process. Thus, it is submitted by the learned Additional Advocate General that in the writ petition as well as in the Letters Patent Appeal, this appellant ought to have joined a candidate whose service is to be brought to an end. No such party has been joined by this appellant. Thus, essential party is not joined as party-
respondent in this case, who should have been a lastly selected candidate in Scheduled Tribe category.
● It is further submitted by the learned Additional Advocate General that this appellant has appeared in the Preliminary Examination in the year 2011, thereafter appeared in the Mains Examination in the year 2012 and, thereafter, appeared in the Interview in the month of November, 2012 and after declaration of the final result on 27 th November, 2013, this appellant has challenged the condition of the advertisement which is not permissible in the eyes of law. Learned Additional Advocate General has relied upon the decision reported in (2007) 8 SCC 100 (paragraph 18) and (2016) 1 SCC 454 (paragraphs 13 to 18 and 20).
● It is further submitted by the learned Additional Advocate General that this appellant has carefully gone through the advertisement which was issued on 16th August, 2010. Caste Certificate was given correctly, whereas, Residential Certificate was not given as per the requirement and after the cut-off date i.e. 9th March, 2012, correct Residential Certificate was given at the time of interview on 1st November, 2012.
● It is further submitted by the learned Additional Advocate General that whenever any cut-off date is prescribed, there are bound to be few candidates who will fall on the wrong side of the cut-off date, but, that does not mean that the cut-off date is arbitrarily fixed. This Court cannot alter the cut-off date 6 prescribed by the Government, otherwise, there may be several candidates who can also apply with their Residential Certificates after the cut-off date. In fact, even if a cut-off date is prescribed by this Court, still there will be candidates who will fall on the wrong side of that newly fixed cut-off date.
Learned Additional Advocate General has relied upon several decisions rendered by the Hon'ble Supreme Court, in which, it has been stated that cut-
off date cannot be altered by the Court.
● It is further submitted by the learned Additional Advocate General that the Certificate issued by the Circle Officer cannot be accepted, so far as 4 th Combined Civil Service Examination is concerned, whereas, this candidate-
appellant has submitted the Certificate issued by the Circle Officer, District-
Latehar and correct Certificate was given on 1 st November, 2012 which was submitted much later than the cut-off date and, hence, no error has been committed by the respondents in not declaring the result of this appellant.
This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. If the condition, which is imposed by the respondents, is altered by this Court, perhaps the whole result of 4th Combined Civil Service Examination published by the respondents on 27th November, 2013 will have to be quashed and those candidates, who have joined the services and confirmed in the Government services, may have to go home that too in their absence which is not permissible in the eyes of law, as those candidates have not been joined as party respondents in this case.
● It is further submitted by the learned Additional Advocate General that as per the decision rendered by the Special Bench of this Court reported in 2003 (1) JCR 3 (Jhr) (Special Bench), what was quashed was the definition of the 7 term "local resident" in a given Governmental notification, but, the very requirement of the Residential Certificate was never quashed and set aside.
Scheduled Caste and Scheduled Tribe category candidates of another State or Scheduled Caste and Scheduled Tribe category candidates, who are not local residents, cannot get the benefit of reservation. If the same Caste is declared as Scheduled Caste or Scheduled Tribe in more than one State and if any candidate of another State is applying, then requirement of the Certificate of local resident will be explicitly clear. Such type of condition is essential part for consideration of Scheduled Caste or Scheduled Tribe category candidates.
Such type of requirement was never held as unconstitutional. The methodology of arriving at a conclusion of local resident was declared as unconstitutional because at the relevant time the definition of the term "local resident" was based upon insertion of the name in revenue entry in the year 1932. Such type of basis was held as unconstitutional, but, not very requirement of the local resident certificate and, hence, even if any error is committed by the respondents in mentioning the notification, number or public advertisement, that does not mean that there was no such requirement at all of grant of local resident certificate, which was to be issued by an officer not below the rank of Sub-Divisional Officer as per Clause 12 of Annexure-1 to be read with Clause 28(i) of Annexure-12 to the memo of this Letters Patent Appeal. If the condition of local resident certificate is taken away, there can be an eventuality that the candidate, who is resident of another State and of same Caste, he will apply and his candidature has to be accepted. There are several Castes which are declared as Scheduled Caste and Scheduled Tribe in more than one State and, hence, local resident certificate is a must for getting the benefit of reservation under Scheduled Caste or Scheduled Tribe category.8
Thus, it is submitted by the Additional Advocate General that the very requirement of local resident certificate was never quashed and set aside or declared as unconstitutional by the Special Bench in the decision reported in 2003 (1) JCR 3 (Jhr) (Special Bench).
● It is further submitted by the learned Additional Advocate General that there is no estoppel on the part of the respondents merely because the candidate was allowed to appear in the Preliminary, Mains Examination and also in the Interview, on the contrary, there is estoppel on the part of the candidate-
appellant because deliberately he has not submitted the Residential Certificate as per Clause 12 of Annexure-1-advertisement. Other Certificates were correctly given by this appellant meaning thereby to this appellant was clever enough to understand the condition attached with the advertisement. The condition of Certificate of local resident imposed by the respondents was not so clumsy that a candidate could not have understood it. It appears that casual was the approach of the candidate and carelessness of the candidate is shown to the fact that correct Certificate was given after the cut-off date in the month of November, 2012 instead of March, 2012. The very same Certificate could have been submitted prior to 9 th March, 2012 which is given on 1st November, 2012. It is not the case of this appellant that there were compelling circumstances with this appellant not to get correct Residential Certificate. It is not the case of this appellant that though he had applied, the competent authority had not given such Certificate. It is not the case of this appellant that after all reasonable attempts he could not procure the correct Certificate. Thus, it appears that either there is casual approach on the part of this appellant or there is lethargic approach on the part of this appellant. This appellant has given correct Certificate on 1st November, 2012 instead of 9th 9 March, 2012 and now he is fluctuating those conditions after appearing in the Preliminary Examination, after appearing in the Mains Examination and after appearing in the Interview, which is not permissible in the eyes of law. Thus, there is estoppel on the part of this appellant instead of on the part of the respondents.
● It is further submitted by the learned Additional Advocate General that at the time of interview, those Certificates could have been produced in original, which have also been submitted prior to cut-off date. Clause 6 of Annexure-6 cannot be operated in favour of this appellant. Clause 6 of Annexure-6 never permits those who have missed the bus or boat and again come with those Certificates. Clause 6 of Annexure-6 is never prescribing another cut-off date because interview was continued for more than one day as there were fluctuating cut-off dates. If such type of permission is given by this Court then even the candidates who are not become B.A., B.Sc. or B.Com or who have no eligibility, they will apply. The examination of huge number of candidates are to be taken unnecessarily and later on at the time of interview all the certificates will have to be verified and those candidates who are not eligible, their result will have to be withhold. If this type of modus operandi is permitted by this Court, then there will be huge number of candidates who will appear even though they are not qualified to appear. There will be huge waste of time and energy by the respondents and, hence, prior submission of the document before the cut-off date is a must. Verification can be done later on, but, no new document can be allowed to be submitted. To take examination is a public policy of the respondents. This Court cannot alter such type of public policy of the respondents while exercising power under Article 226 of the Constitution of India. Normally, few dozens of candidates are appearing in the 10 examination and if this type of liberal approach is permitted by this Court that any one or anybody can appear in the Preliminary Examination or Mains Examination and certificates will be supplied at the time of interview, then there will be lakhs of candidates instead of thousands of candidates for few hundred posts and, thus, Clause 6 of Annexure-6 is of no help to this appellant. It permits to those candidates who had given certificates only prior to the cut-off date and no new document can be supplied.
● It is further submitted by the learned Additional Advocate General that the decision rendered by the Hon'ble Supreme Court reported in (2016) 4 SCC 754 are based upon entirely different facts than the facts of the present case.
The condition in that reported decision is that supply of Other Backward Classes (OBC) Certificate was inserted after the result was published and, thereafter, the Hon'ble Supreme Court permitted to submit such OBC Certificate after the cut-off date.
● It is further submitted by the learned Additional Advocate General that otherwise right from the year 1975, there are consistent judgments of the Hon'ble Supreme Court that after the cut-off date, no document can be supplied by the candidate. In the facts of the present case, such requirement was already pointed out in the public advertisement dated 16 th August, 2010 as per Clause 12 thereof (Annexure-1).
Reasons:
5. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts, reasons and judicial pronouncements:-
(i) The respondents have issued a public advertisement no. 07 of 11 2010 dated 16th August, 2010 which is popularly known as 4th Combined Civil Service Examination for several posts within the State of Jharkhand.
(ii) This appellant (original petitioner) has applied for the post of Sub-
Divisional Officer. He belongs to Scheduled Tribe category.
(iii) Looking to condition no. 12 of the public advertisement, which is at Annexure-1 to the memo of this Letters Patent Appeal, it appears that those candidates who were in search of reservation they had to apply along with their Caste Certificates and Residential Certificates, which was mentioned unequivocally or unambiguously. Residential Certificate was to be issued by an officer not below the rank of Sub-Divisional Officer. Same was the condition for Caste Certificate also.
(iv) This appellant has carefully gone through these conditions and along with several Certificates, Caste Certificate was given correctly, whereas, Residential Certificate was given, which was issued by the Circle Officer, District- Latehar, who is below the rank of Sub-Divisional Officer. This Certificate was to be given, as per Clause 28(i) of Annexure-12, as on the date of filing of the form in the Mains Examination. Thus, the cut-off date was 9th March, 2012. Admittedly, Residential Certificate issued by the Sub-Divisional Officer was not supplied on or before the said cut-off date.
(v) This appellant realised the error and presented the correct Certificate as on the date of his interview i.e. on 1st November, 2012 and, therefore, his result was not declared by the Jharkhand Public Service Commission, which was under challenge, in the writ petition preferred by this appellant. It appears that no error has been committed by the learned Single Judge while dismissing the writ petition. We are in 12 full agreement with the reasons given by the learned Single Judge.
(vi) After the prescribed cut-off date (in the facts of the present case, it is 9th March, 2012), the document required as per Clause 12 of the public advertisement (Annexure-1) cannot be supplied by the candidate.
Whenever any cut-off date is prescribed, there are bound to be few candidates who will fall on the wrong side of the cut-off date. There cannot be any cut-off date, whereby, not a single candidate will fall on the wrong side of the cut-off date. Even if this Court is fixing a new cut-off date, then also, there can be candidate who will come with those certificates at a later point of time. It ought to be kept in mind that, to prescribe a particular cut-off date is a public policy of the respondents with a view to attach finality of a particular process. Applications cannot be received at any point of time, otherwise, Preliminary Examination cannot be conducted at all and there is no question of conducting Mains Examination whatsoever. Every thing cannot be fluctuating. Those who have missed the bus or boat or those who cannot supply the Certificate prior to cut-off date, they have to wait for the next examination, howsoever intelligent they may be.
(vii) It has been held by the Hon'ble Supreme Court in the case of Union of India & Another v. M/s Parameswaran Match Works & others, as reported in (1975) 1 SCC 305, at paragraph no.10 as under:
"10. The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967 as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967 that its total clearance for the financial year 1967-68 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide 13 latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions (see Hatisingh Mfg. Co. Ltd. v. Union of India, Dr Mohammad Saheb Mahboob Medico v. Deputy Custodian-General, Bhikuse Yamasa Kshatriya (P) Ltd. v. Union of India and Daruka & Co. v. Union of India. The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide off the reasonable mark See Louisville Gas Co. v. Alabama Power Co. per Justice Holmes."
(Emphasis Supplied)
(viii) It has been held by the Hon'ble Supreme Court in the case of A.P. Public Service Commission, Hyderabad & Another v. B. Sarat Chandra & others, as reported in (1990) 2 SCC 669, at paragraph nos. 6, 7 and 8 as under:
"6. There is no dispute that the eligibility of a candidate as to age for appointment as Deputy Superintendent of Police should be determined according to Rule 5 of the A.P. Police Services Rules. It is, therefore, necessary to look first at that Rule. Rule 5 so far as is relevant provides:
"5. Qualifications.-- (A) No person shall be eligible for appointment as a Deputy Superintendent of Police, Category 2 by direct recruitment unless he --
(i) has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made.
* * *"
7. The rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police. Minimum age is 21 years. The candidate must have completed 21 years on the first day of July of the year in which the selection is made. He should not have also completed 26 years as on that day. The Tribunal while construing this rule has observed:
"According to the procedure the process of selection begins with the issue of the advertisement and culminates in forwarding the list to the appointing authority. The essence of the process lies in the preparation of the list. A selection can be said to have been done only when the list is prepared. In this view the eligibility of the candidates as to age has to be determined at this stage."14
If the word 'selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the rule making authority.
8. The appeal therefore, is allowed setting aside the order of the Tribunal."
(Emphasis Supplied)
(ix) It has been held by the Hon'ble Supreme Court in the case of Union of India and Another v. Sudhir Kumar Jaiswal, as reported in (1994) 4 SCC 212, in paragraph nos. 7, 8 and 11, as under:-
"7. In this context, it would also be useful to state that when a court is called upon to decide such a matter, mere errors are not subject to correction in exercise of power of judicial review; it is only its palpable arbitrary exercise which can be declared to be void, as stated in Metropolis Theater Co. v. City of Chicago in which Justice McKenna observed as follows:
"It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void ...."
The aforesaid was noted by this Court in Sushma Sharma v. State of Rajasthan in which case also reasonability of fixation of a date for a particular purpose had come up for examination.
158. Having known the legal parameters within which we have to function, let it be seen whether fixation of 1st August as cut-off date for determining the eligibility of applicants qua their age can be held to be arbitrary despite preliminary examination being conducted before that date. As to why the cut-off date has not been changed despite the decision to hold preliminary examination, has been explained in paragraph 3 of the special leave petition. The sum and substance of the explanation is that preliminary examination is only a screening test and marks obtained in this examination do not count for determining the order of merit, for which purpose the marks obtained in the main examination, which is still being held after 1st August, alone are material. In view of this, it cannot be held that continuation of treating 1st August as the cut-off date, despite the Union Public Service Commission having introduced the method of preliminary examination which is held before 1st August, can be said to be "very wide off any reasonable mark" or so capricious or whimsical as to permit judicial interference.
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11. For the aforesaid reasons, equity does not demand any favour to be shown to the respondent. The result is that appeal is allowed with costs by setting aside the impugned order of the Tribunal. Cost assessed as Rs 10,000. The respondent would not be treated or deemed to have passed the examination in question and whatever benefit of the same was given to him pursuant to Tribunal's directions shall stand cancelled."
(Emphasis Supplied)
(x) It has been held by Hon'ble Supreme Court in the case of Dr. (Mrs.) Sushma Sharma v. State of Rajasthan & ors. , as reported in A.I.R. 1985 SC 1367, in paragraph no.29, as under:
"29. The object of this legislation was to provide for absorption of temporary lecturers of long standing. So therefore experience and continuous employment were necessary ingredients. The Hindi version of the Ordinance used the expression "ke prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning "and are continuing" to work as such at the time of the commencement of the Ordinance. Keeping the background of the purpose of the Act in view that would be the proper construction and if that is the proper construction which is in consonance with the English version of the Ordinance and the Act as well as with the object of the Act then in our opinion the Act and the Ordinance should be construed to mean that only those would be eligible for screening who were appointed prior to 25-6-1975 and were continuing at the time of the commencement of the Ordinance i.e. 12-6-1978 i.e. approximately about three years. If that is the correct reading, then we are unable to accept the criticism that those who were for a short period appointed prior to 25-6-1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. 12-6-1978 would also be eligible. In other words people with very short experience would be eligible for absorption. That cannot be the purpose of the Act. It cannot be so 16 read reasonably. Therefore on a proper construction it means that all temporary lecturers who were appointed as such on or before 25-6-1975 and were continuing as such at the commencement of the Ordinance shall be considered by the University for screening for absorption. The expression "were continuing" is significant. This is in consonance with the object of the Act to ensure continuity of experience and service as one of the factors for regularising the appointment of the temporary lecturers. For regularising the appointment of temporary lecturers, certain continuous experience is necessary. If a Legislature considers a particular period of experience to be necessary, the wisdom of such a decision is not subject to judicial review. Keeping the aforesaid reasonable meaning of clause (3) of the Ordinance and section 3 of the Act in view, we are of the opinion that the criterion fixed for screening for absorption was not irrational criterion or a criterion not having any nexus with the purpose of the Act. Therefore, the criticism that a teacher who was working even for two or three months only before 25-6-1975 and then with long interruptions was in employment of the University at the time of the commencement of the Ordinance would be eligible but a teacher who had worked continuously from 26-6-1975 i.e. after the date fixed i.e. 25th June, 1975 for three years would be ineligible and as such that will be discrimination against long experience, cannot be accepted. Such a construction would be an unreasonable construction unwarranted by the language used in the provisions concerned. It is well-settled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a particular job or a particular employment is not subject to judicial review. We need not refer to a large number of decisions on this point."
(Emphasis Supplied)
(xi) It has been held by the Hon'ble Supreme Court in the case of Dr. Ami Lal Bhat v. State of Rajasthan & ors., as reported in (1997) 6 SCC 614, in paragraph nos. 5, 7, 11 and 17, as under: "
"5. This contention, in our view, is not sustainable. In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cut-off date for determining the maximum or minimum age required for a post, is in the discretion of the rule- making authority or the employer as the case may be. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut- off date. That cannot make the cut-off date, per se, arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. Parameswaran Match Works and has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B. Sarat Chandra the relevant service rule stipulated that the 17 candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut-off date was challenged. This Court considered the various steps required in the process of selection and said, "when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications".
This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut-off date should be with reference to a fixed date. Therefore, fixing an independent cut-off date, far from being arbitrary, makes for certainty in determining the maximum age.
xx xx xx
7. In the present case, the cut-off date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All Service Rules are uniform on this point. Looking to the various dates on which different departments and different heads of administration may issue their advertisements for recruitment, a uniform cut-off date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for certainty. Such a uniform date prescribed under all Service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as grossly unreasonable or arbitrary. The time-gap between the advertisement and the cut-off date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cut-off date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cut-off date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cut-off date. But there is no basis for urging that this is the only reasonable cut-off date. Even such a date is liable to question in given circumstances. In the first place, making a cut-off date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, making it dependent on the date when each department issues an advertisement, and the date which each department concerned fixes as the last date for receiving applications. A person who may fall on the wrong side of such a cut-off date may well contend that the cut-off date is unfair, since 18 the advertisement could have been issued earlier; or in the alternative that the cut-off date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cut-off date fixed and the manner in which it is fixed. That is why this Court has said in the case of Parameswaran Match Works and later cases that the cut-off date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cut-off date can be the last date for receiving applications, appears to be without any basis. In our view the cut-off date which is fixed in the present case with reference to the beginning of the calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prone to vagaries and is less uncertain.
xx xx xx
11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.
xx xx xx
17. In the premises the appeals of the candidates who have challenged the cut-off date under the relevant rules are dismissed while the appeals filed by the State of Rajasthan are allowed. The validity of the Rules concerned relating to the cut-off date being fixed with reference to 1st of January of the year following the application is upheld. There will be no order as to costs."
(Emphasis Supplied)
(xii) It has been held by the Hon'ble Supreme Court in the case of Public Service Commission & ors. v. Arvind Singh Chauhan & ors., as reported in (2009) 9 SCC 135, in paragraph nos. 19, 20, 23 and 24, as under:
"19. As far as the finding of the High Court is concerned, had the intention of the Commission been to consider 31-3-2003 as a cut-off date for eligibility, it would have been explicitly specified. The Division Bench has referred to the Circular dated 22-3-2002 issued by the Department of General Administration of the State 19 Government. The relevant portion of the Circular reads:
"Keeping in view the increasing problem of unemployed youths in the State and keeping the interest of the unemployed youths in mind, the Government has again considered and has taken a decision that a further relaxation of two years more needs to be given. Meanwhile, thereby now from March 2000 to March 2003, the maximum age-limit for appointment in government services will be thirty-five years."
20. Rule 5(C) of the State Services Examination Rules on which reliance was placed by the appellant states:
"5. (C)(a) A candidate must have attained the age of 21 years and must not have attained the age of 30 years on 1st January next following the date of commencement of the competitive examination."
xx xx xx
23. On account of no record of any concession made on the part of the appellants and considering all the circumstances of the case, it is clear that the respondents were over aged on the specified cut- off dates which makes their application liable for cancellation.
24. In view of the above discussion, the appeals are allowed. The impugned order is set aside. In view of the peculiar facts and circumstances of the case, the parties are directed to bear their own costs.
(Emphasis Supplied)
(xiii) It has been held by the Hon'ble Supreme Court in the case of University Grants Commission v. Sadhana Chaudhary & ors., as reported in (1996) 10 SCC 536, in paragraph no.21, as under:
"21. We find considerable force in the aforesaid submissions of Shri Banerjee. It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works at p. 579 and Sushma Sharma (Dr) v. State of Rajasthan at p. 269.) In the present case, the date, 31-12-1993, as fixed by notification dated 21-6-1995, in the matter of grant of exemption from the eligibility test for appointment on the post of lecturer has a reasonable basis keeping in view the time taken in submitting the Ph.D. thesis or obtaining M. Phil. degree by candidates who had undertaken the study for Ph.D. or M. Phil. degree prior to the issuance of the 1991 Regulations and the date, 31-12-1993, cannot be held to be capricious or whimsical or wide off the reasonable mark. The High Court of Punjab and Haryana has proceeded on the basis that the cut-off date for the purpose of granting exemption from eligibility test should have nexus with the date of the advertisement inviting applications for appointment on the post of Lecturers. The High Court was in error in taking this 20 view.
......................................"
(Emphasis Supplied)
(xiv) It has been held by the Hon'ble Supreme Court in the case of State of Bihar v. Ramjee Prasad, as reported in (1990) 3 SCC 368, in paragraph no.8, as under:
"8. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as January 31, 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as January 31, 1988 the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix June 30 of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of anyone that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the government's action of fixing the last date for receipt of applications as January 31, 1988 as arbitrary."
(Emphasis Supplied)
(xv) It has been held by the Hon'ble Supreme Court in the case of Ramrao v. All India Backward Class Bank Employees Welfare Assn., as reported in (2004) 2 SCC 76, from paragraph nos. 29 to 36, as under:
"29. It is now well settled that for the purpose of effecting 21 promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cut-off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. In the instant case, the cut-off date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be said to be arbitrary, irrational, whimsical or capricious.
30. The learned counsel could not point out as to how the said date can be said to be arbitrary and, thus, violative of Article 14 of the Constitution of India.
31. It is not in dispute that a cut-off date can be provided in terms of the provisions of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary 1 it has been observed: (SCC p. 546, para 21) "21. ... It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works, SCC at 310 : SCR at p. 579 and Sushma Sharma (Dr) v. State of Rajasthan, SCC at 66 : SCR at p. 269.)"
32. If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India.
33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date, but, the fact that some persons or a section of society would face hardship, by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution.
34. In State of W.B. v. Monotosh Roy it was held: (SCC pp. 76-77, paras 13-15) "13. In All India Reserve Bank Retired Officers Assn. v. Union of India a Bench of this Court distinguished the judgment in Nakara and pointed out that it is for the Government to fix a cut-off date in the case of introducing a new pension scheme. The Court negatived the claim of the persons who had retired prior to the cut-off date and had collected their retiral benefits from the employer. A similar view was taken in Union of India v. P.N. Menon. In State of Rajasthan v. Amrit Lal Gandhi the ruling in P.N. Menon case was followed and it was reiterated that in matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis has to be fixed for extending the benefits.
2214. In State of U.P. v. Jogendra Singh a Division Bench of this Court held that liberalized provisions introduced after an employee's retirement with regard to retiral benefits cannot be availed of by such an employee. In that case the employee retired voluntarily on 12-4-1976. Later on, the statutory rules were amended by notification dated 18-11-1976 granting benefit of additional qualifying service in case of voluntary retirement. The Court held that the employee was not entitled to get the benefit of the liberalized provision which came into existence after his retirement. A similar ruling was rendered in V. Kasturi v. Managing Director, State Bank of India.
15. The present case will be governed squarely by the last two rulings referred to above. We have no doubt whatever that the first respondent is not entitled to the relief prayed for by him in the writ petition."
35. In Vice-Chairman & Managing Director, A.P. SIDC Ltd. v. R.Varaprasad in relation to "cut-off" date fixed for the purpose of implementation of Voluntary Retirement Scheme, it was said: (SCC p. 580, para 11) "The employee may continue in service in the interregnum by virtue of clause (i) but that cannot alter the date on which the benefits that were due to an employee under VRS were to be calculated. Clause (c) itself indicates that any increase in salary after the cut-off point/date cannot be taken into consideration for the purpose of calculation of payments to which an employee is entitled under VRS."
36. The High Court in its impugned judgment has arrived at a finding of fact that the Association had failed to prove any malice on the part of the authorities of the Bank in fixing the cut-off date. A plea of malice as is well known must be specifically pleaded and proved. Even such a requirement has not been complied with by the writ petitioners.""
(Emphasis supplied) (xvi) It has been held by the Hon'ble Supreme Court in the case of Shankar K. Mandal & others v. State of Bihar & others, as reported in (2003) 9 SCC 519, in paragraph no.5, as under:
"5. Pursuant to the directions contained in the earlier judgment of the High Court as affirmed by this Court, a fresh exercise was undertaken. Since the present appellants were not selected, writ petitions were filed before the High Court. In the writ petition which was filed by fifty-five persons and disposed of by the Division Bench the conclusions were essentially as follows: (1) Some of the writ petitioners (Writ Petitioners 5, 18, 23, 28, 41 and 53) were overage at the time of their initial appointment and their cases were, therefore, wholly covered by the directions given by the High Court, and they were not entitled to relaxation of age; (2) So far as Writ Petitioners 6, 26, 30 and 55 are concerned, the stand was that they had not crossed the age-limit at the time of making the applications for appointment and, therefore, were within the age-limit at the time of initial appointment and were, therefore, entitled to relaxation of age in terms of the judgment passed by the High Court 23 earlier and affirmed by this Court. This plea was turned down on the ground that what was relevant for consideration related to the age at the time of initial appointment and not making of the application; (3) As regards Writ Petitioner 24, he was underage at the time of appointment. He was permitted to file a representation before the Director of Primary Education and the High Court ordered that his case would be considered afresh; (4) In respect of Writ Petitioners 9 and 17, it was noted that they were refused absorption on the ground that they had not made any application in response to advertisement issued pursuant to the order passed by this Court.
Since no material was placed to substantiate this stand and no reasons had been communicated for non-absorption, direction was given to consider representations if made by them within one month from the date of judgment. The said judgment is under challenge in CA No. 916 of 1999. The appellants have taken the stand that in terms of this Court's judgment, a person who was not overage on the date of initial appointment was to be considered. Though it was conceded before the High Court that they were overage at the time of initial appointment, much would turn as to what is the date of initial appointment. The High Court had not considered as to what was the applicable rule so far as the eligibility regarding age is concerned. Learned counsel appearing for the respondent State however submitted that having made a concession before the High Court that they were overage on the date of appointment, it is not open to the appellants to take a different stand. The crucial question is whether appellants were overage on the date of their initial appointment. It is true that there was concession before the High Court that they were overage on the date of initial appointment. But there was no concession that they were overage at the time of making the application. There was no definite material before the High Court as to what was the eligibility criteria so far as age is concerned. No definite material was placed before the High Court and also before this Court to give a definite finding on that aspect. What happens when a cut-off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court (see Ashok Kumar Sharma v. Chander Shekhar, Bhupinderpal Singh v. State of Punjab and Jasbir Rani v. State of Punjab) are as follows:
(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.
(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."
(Emphasis Supplied) (xvii) It has been held by the Hon'ble Supreme Court in the case 24 of Kendriya Vidyalaya Sangathan & others v. Sajal Kumar Roy & others, as reported in (2006) 8 SCC 671, in paragraph nos. 10 and 11, as under:
"10. It is not in dispute that the appellants have framed rules for recruitment known as the Education Code for Kendriya Vidyalayas. Article 45 of the said Code provides for age-limit in the following terms:
"45. Age-limits The following upper age-limits have been prescribed for recruitment to the posts:
Assistant Commissioner 30-40 years
Principal 35-50 years
PGT 40 years
TGT 35 years
Primary teacher 30 years
Music teacher 30 years
Other teachers including librarian 35 years
LDC and UDC 25 years
Group D Lab Attendants 18-25 years
The upper age-limits are relaxable in the case of special categories as follows:
(i) Scheduled Caste/Tribe - 5 years
(ii) Retrenched Central Government Period of their service in
employees including defence civil/military departments
personnel increased by 3 years.
The appointing authority can, in his discretion, relax these age- limits in deserving cases on the recommendation of the Appointing Committee/Selection Committee."
11. The respondents are not members of the Scheduled Caste or Scheduled Tribe. Age-limit is prescribed for appointment to the general category of employees. The upper age-limit for appointment to the post of LDC is 25 years. The advertisement also says so. The Rules, as noticed hereinbefore, are in two parts. The first part talks about the age-limit. The second part provides for relaxation. Such relaxation can be granted for the purpose specified i.e. in favour of those who answered the descriptions stated therein. Relaxation of age-limit even in relation to the Scheduled Caste and the Scheduled Tribe candidates or the retrenched Central Government employees, including the defence personnel is, however, not automatic. The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age-limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As the respondents do not come within the purview of the exception contained in Article 45 25 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions."
(Emphasis Supplied) (xviii) It has been held by the Hon'ble Supreme Court in the case of Government of Andhra Pradesh v. N. Subbarayudu, as reported in (2008) 14 SCC 702, in paragraph nos. 5 to 9, as under:
"5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal.)
6. No doubt in D.S. Nakara v. Union of India this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal.
7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.
8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad, Union of India v. Sudhir Kumar Jaiswal (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn. (vide SCC para 31), University Grants Commission v. Sadhana Chaudhary, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.
9. As has been held by this Court in Aravali Golf Club v. Chander Hass and in Govt. of A.P. v. P. Laxmi Devi the court must maintain judicial restraint in matters relating to the legislative or executive domain.
(Emphasis Supplied) (xix) In view of the aforesaid decisions, the cut-off date which is 26 prescribed by the respondents cannot be altered. In the facts of the present case, the cut-off date was 9th March, 2012 for submitting Residential Certificate, issued by an officer now below the rank of Sub-
Divisional Officer. Admittedly, this appellant had supplied the Residential Certificate, issued by the Sub-Divisional Officer on 1 st November, 2012 and, hence, no error has been committed by the respondents in withholding the result of this appellant and no error has been committed by the learned Single Judge in dismissing W.P.(C) No. 6512 of 2013 vide judgment and order dated 4th August, 2015.
(xx) This appellant has clearly understood the conditions of the advertisement except one pertaining to Residential Certificate. Rest of the Certificates have been correctly given in time i.e. prior to the cut-off date, meaning thereby to, this appellant, who is applying for 4 th Combined Civil Service Examination, is clever enough, to understand the conditions of the advertisement which makes him, eligible to appear in the Examination. Caste Certificate of Scheduled Tribe category was correctly submitted by this appellant, which was issued by an officer not below the rank of Sub-Divisional Officer, whereas, Residential Certificate was submitted on 1st November, 2012, which was issued by the Sub-Divisional Officer. Initially, the Residential Certificate submitted by this appellant was issued by the Circle Officer, District- Latehar. The Circle Officer is below the rank of Sub-Divisional Officer. This appellant could have submitted correct Residential Certificate prior to 9 th March, 2012, which he had given on 1 st November, 2012. It is not the case of this appellant that he applied for the Certificate and he was not given the same by the Sub-Divisional Officer. It is not the case of this appellant 27 that there were certain compelling reasons with this appellant which have prevented him from getting correct Residential Certificate. It is not the case of this appellant that there were compelling circumstances with the officer of the Government not to issue such Certificate. Thus, it appears that either there is casual approach on the part of this appellant while preferring an application or there is negligent approach, on the part of this appellant. In none of these two eventualities, this candidate can be permitted to produce a Certificate after the prescribed cut-off date, otherwise, it will tantamount to premium given to this appellant for his negligence, otherwise also, it will tantamount to take the benefit of his own wrong. Thus, who are applying for public post must be vigilant and careful while applying. Perhaps, it is a purpose for selecting best candidates from amongst few accurate candidates, from amongst few casual candidates and from amongst few lethargic candidates. In competitive examination, best candidates are selected by the Government. Those who are committing errors must suffer, for that especially when competitive examinations are being conducted.
(xxi) It further appears from the facts of the case that this appellant was vigilant to give rest of the Certificates except Residential Certificate, in time. He had given correct Certificate on 1st November, 2012 instead of 9th March, 2012 after correct understanding the conditions of the advertisement and after appearing in the Preliminary Examination, thereafter in the Mains Examination and thereafter in the Interview and after publishing final result on 27th November, 2013.
(xxii) It has been held by the Hon'ble Supreme Court in the case of Union of India v. S. Vinodh Kumar, as reported in (2007) 8 SCC 28 100, in paragraph no.18, as under:
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil.) (See also Rashmi Mishra v. M.P. Public Service Commission.)"
(Emphasis Supplied) (xxiii) It has been held by the Hon'ble Supreme Court in the case of Madras Institute of Development Studies v. K. Sivasubramaniyan, as reported in (2016) 8 SCC 454, in paragraph nos.13, 14, 15, 16, 17, 18 and 20, as under:
"13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.
14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.
15. In G. Sarana v. University of Lucknow, a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following 29 observations made therein are worth quoting: (AIR p. 432, para 9) '9. ... It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.'"
16. In Madan Lal v. State of J&K, similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."
17. In Manish Kumar Shahi v. State of Bihar, this Court reiterated the principle laid down in the earlier judgments and observed: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
18. In Ramesh Chandra Shah v. Anil Joshi, recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) "24. In view of the propositions laid down in the 30 abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
20. Taking into consideration the entire facts of the case and the law laid down by this Court in a catena of decisions, we are of the definite opinion that the Division Bench has committed grave error in law by passing the impugned judgment reversing the order passed by the learned Single Judge."
(Emphasis Supplied) (xxiv) In view of the aforesaid decisions, if any candidate who has understood thoroughly well the advertisement and conditions attached thereof and after acting upon those conditions, if he is supplying several documents of his marks sheet, caste certificate etc. and if he has committed error in supplying one of the documents, he cannot challenge imposition of such condition after Preliminary Examination, after Mains Examination, after Interview and after publishing result. This aspect of the matter has also been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant (original petitioner).
(xxv) Much has been argued by the learned counsel for the appellant by relying upon the decision rendered by the Hon'ble Supreme Court reported in (2016) 4 SCC 754, in which it has permitted to supply the document after the cut-off date. Perhaps, it is only the exception to catena of the decisions. We have to look carefully at the facts of that case. In the facts of that reported case, explicitly the condition was imposed to supply a particular type of certificate, after the result was declared. The format was given after the result was declared (as per Paragraph 8 of the said judgment). It is a distinguishable 31 feature. In the facts of the present case, looking to Clause 12 of the public advertisement which is at Annexure-1 to the memo of this Letters Patent Appeal, Residential Certificate as well as Caste Certificate issued by an officer now below the rank of Sub-Divisional Officer was to be attached with the application form. This appellant (original petitioner) has submitted the Caste Certificate correctly, whereas, Residential Certificate was not supplied as per the requirement. This fact makes the present case different from the facts of the aforesaid reported decision.
There cannot be two types of cut-off date - one for General category and another for Scheduled Tribe category candidates, so that the Scheduled Tribe candidates can produce certificate at any point of time.
Reserved category candidates are given some priority which is in the form of leniency in passing standard etc. or in the age relaxation etc., but, that does not mean that procedural leniency should be given to such type of candidates. Procedural leniency can be given only by the respondents and not by the Court, otherwise, even age relaxation may be supplied by the Court. Cut-off marks may also be supplied by the Court, but, this is not permissible in the eyes of law. Whatever leniency is to be given, or, whatever relaxation is to be given, or whatever condition is to be waived for the reserved category candidates, all can be done as a policy decision by the respondents and not by the Court, much less, while exercising power under Article 226 of the Constitution of India. The Court cannot be more charitable than the law, nor the Court can be more lenient or generous beyond the policy of the respondents. Too much leniency will lead to chaotic situation. Any time and every time the candidates cannot be allowed to give the certificates.
32There is bound to be a cut-off date and every one is bound by such cut-
off date so that process of selection can be started and examination can be conducted and result can be declared. If this Court is changing the cut-off date, perhaps there cannot be any finality of the examination process. This is not permissible in the eyes of law. Every candidate is bound to give correct application with all necessary documents on or before the prescribed cut-off date, so that process of selection can be over, in time examination can be conducted and the result can be declared. The Court can alter neither the cut-off date prescribed by the Government nor the Court can alter the condition of the advertisement.
These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. Even otherwise also, result of 4th Combined Civil Service Examination has been published in the year 2013. Thus, the selected candidates have already joined the services and, thereafter, 5th Combined Civil Service Examination has also been conducted and selected candidates have also joined the services and, hence also, we see no reason to interfere with the result already published.
6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge while dismissing the writ petition being W.P.(C) No. 6512 of 2013 vide judgment and order dated 4 th August, 2015. We see no reason to take any other view than what is taken by the learned Single Judge. We are in full agreement with the reasons given by the learned Single Judge while dismissing the writ petition. Hence, there is no substance in this Letters Patent Appeal, the same is, therefore, dismissed.
337. I.A. No. 8309 of 2016, I.A. No. 3947 of 2017 and I.A. No. 2169 of 2018 are also disposed of, in view of final order passed in the Letters Patent Appeal.
(D.N. Patel, A.C.J.)
(Amitav K. Gupta, J.)
Ajay/ A.F.R.