Jharkhand High Court
The State Of Jharkhand Through The ... vs Kokila Devi And Ors on 3 July, 2017
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 429 of 2014
with
I.A. No. 5635 of 2014
with
L.P.A. No. 03 of 2015
with
I.A. No.513 of 2015
with
I.A. No. 5751 of 2016
with
I.A. No. 5887 of 2015
with
L.P.A. No. 04 of 2015
with
I.A. No. 498 of 2015
with
L.P.A. No. 09 of 2015
with
I.A. No. 497 of 2015
1. The State of Jharkhand through the Secretary, Human Resources
Development Department, Govt. of Jharkhand, At Project Building, P.O.
& P.S. Dhurwa, Dist. Ranchi.
2. The Director, Primary Education, Human Resources Development
Department, Govt. of Jharkhand, At Project Building, P.O. & P.S. Dhurwa,
Dist. Ranchi.
3. The District Superintendent of Education Ranchi, Near Court
Compound, P.O. G.P.O., P.S. Kotwali, Dist. Ranchi, Jharkhand.
...Appellants
Versus
1. Kokila Devi, wife of Nalinikant Mahto, Resident of New Nagar
Bandhgari Dipatoli, P.O.Bariyatu, P.S. Sadar, DistrictRanchi, Jharkhand.
.... Respondent/Petitioner
2. The Jharkhand Academic Council through its Chairman, At
Bargawan, Namkom, P.O. & P.S. Namkom, Dist, Ranchi.
.... .... Respondent/Respondent no.3
3. The Deputy Commissioner, Ranchi Near Court Compound, P.O.
G.P.O., P.S. Kotwali, Dist. Ranchi, Jharkhand
........ Respondent/Respondent
[in L.P.A. No. 429 of 2014]
2
with
1. The State of Jharkhand
2. The Secretary, Human Resources Development Department, Govt.
of Jharkhand, at Project Building, P.O. & P.S. Dhurwa, Dist. Ranchi.
3. The Director, Primary Education, Human Resources Development
Department, Govt. of Jharkhand, at Project Building, P.O. & P.S. Dhurwa,
Dist. Ranchi.
4. The Deputy Commissioner, East Singhbhum, P.O. & P.S.
Jamshedpur , Dist. East Singhbhum, Jharkhand.
5. The District Education Officer, East Singhbhum, P.O. & P.S.
Jamshedpur, Dist. East Singhbhum, Jharkhand.
...Appellants/Respondents.
Versus
1. Birendra Nath Bera, son of Late Bhola Nath Bera, resident of
vill. Dakshinsole, P.O. Sardiha, P.S. Chakulia, District East Singhbhum
Jharkhand.
2. Ajit Kumar Srivastava, son of Late Sri Lawlin Prasad, resident of
26, Khasmahal, P.O. Tatanagar, P.S. Parsudih, District East Singhbhum,
Jharkhand.
3. Sambaran Dandapat, son of Late Harihar Dandapat, resident of
vill. Sason, P.O. & P.S. Gamhariya, District East Singhbhum, Jharkhand.
4. Ashish Kumar Nandi, son of Joy Krishna Nandi, resident of vill.
& P.O. Kumardubi, P.S. Barsole, District East Singhbhum, Jharkhand.
5. Manoj Kumar Giri, Son of Adibas Giri, resident of vill. and P.O.
Chhota Purulia, P.S. Barsole, District East Singhbhum, Jharkhand.
6. Chhaya Nayak, wife of Bhatandu R.N. Nayak, resident of vill.
Baghakuli, P.O. Darkhuli, P.S. Barsole, District East Singhbhum,
Jharkhand. .... Respondents/Petitioners
7. The Chairman, Jharkhand Academic Council, Gyandeep
Campus, at Bargawan, Namkom, P.O. & P.S. Namkom, Dist. Ranchi.
8. The Secretary, Jharkhand Academic Council, Gyandeep
Campus, At Bargawan, Namkom, P.O. & P.S. Namkom, Dist. Ranchi.
.... Respondents/Respondents
[in L.P.A. No. 03 of 2015]
with
3
1. The State of Jharkhand through the Secretary, Human Resources
Development Department, Govt. of Jharkhand, at Project Building, P.O.
& P.S. Dhurwa, Dist. Ranchi.
2. The Director, Primary Education, Human Resources Development
Department, Govt. of Jharkhand, at Project Building, P.O. & P.S. Dhurwa,
Dist. Ranchi.
3. The District Superintendent of Education, Latehar, P.O. & P.S.
Latehar, Dist. Latehar, Jharkhand.
4. The District Superintendent of Education, Dhanbad, P.O. & P.S.
Dhanbad, Dist. Dhanbad, Jharkhand.
5. The District Superintendent of Education, Ramgarh, P.O. & P.S.
Ramgarh, Dist. Ramgarh, Jharkhand.
...Appellants/Respondents
Versus
1. Akhilesh Kumar Pandey, son of Shri Suresh Pandey, resident of vill.
Balumath, P.O. & P.S. Balumath, District Latehar, Jharkhand.
2. Md. Shamim Akhtar, son of Md. Idrish, resident of vill. Sukudih,
P.O. Gundhasa, P.S. Hariharpur (Gomo), District Dhanbad, Jharkhand.
3. Sahit Ohdar, son of Late Chutu Ohdar, resident of vill. Sandi, P.O.
Sandi, P.S. Rajorappa, District Ramgarh, Jharkhand.
.... Respondents/Petitioners
[in L.P.A. No. 04 of 2015]
with
1. The State of Jharkhand
2. The Principal Secretary, Human Resources Development
Department, (Directorate of Primary Education), Govt. of Jharkhand, at
Project Building, P.O. & P.S. Dhurwa, Dist. Ranchi.
3. The Director, Primary Education, Human Resources Development
Department, Govt. of Jharkhand, at Project Building, P.O. & P.S. Dhurwa,
Dist. Ranchi.
4. The District Superintendent of Education, Gumla, P.O. & P.S.
Gumla, Dist. Gumla, Jharkhand. ...Appellants /Respondents
Versus
1. Dasrath Mahto, son of Sri Soma Mahto, resident of Daruara, P.O.
Baridih, P.S. Tamar, District Ranchi, Jharkhand.
4
2. Sanjay Kumar Gupta, son of Ganpat Prasad Sahu, resident of Main
Road, P.O. & P.S. Gumla, District Gumla, Jharkhand.
3. Durga Prasad Sahu, son of Sri Santu Sahu, resident of village
Kumharia, P.O. Karunda, P.S. Gumla, District Gumla, Jharkhand.
4. Reeta Mehta, wife of Khiju Mahto, resident of Old Road, Argora,
P.O. & P.S. Argora District Ranchi.
.... Respondents/Petitioners
[in L.P.A. No. 09 of 2015]
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE AMITAV K. GUPTA
For the State : Mr. Rajesh Kumar, GPV
Mr. Kumar Sundaram, Advocate.
Mr. Abhijeet Kumar Singh, Advocate
For the JAC : Mr. M.S. Anwar, Sr. Advocate
Mr. Afaque Ahmed, Sunil Kr. Sinha. Advocate
For the Respondent(s): M/s Manoj Tandon, Kumari Rashmi, Navin
Kumar Singh, M.L.K. Chitra. Advocates
M/s.Nagmani Tiwari,Kaustav Panda, Advocates
M/s Rahul Kumar, Prabhat Singh, Vijay Kr.
Gupta, Sumit Prakash, Advocates.
10/Dated: 3rd July, 2017
Oral order:
Per D.N. Patel, A.C.J.:
1. These Letters Patent Appeals have been preferred by the original
respondentsState of Jharkhand
being aggrieved and feeling dissatisfied
by the judgment and order delivered by the learned Single Judge in W.P.
(S)No.7885 of 2013, W.P.(S) No. 7122 of 2013, W.P.(S) No.7880 of 2013
and W.P.(S)No.576 of 2014 whereby, the learned Single Judge has
allowed the writ petitions preferred by the private respondents (original
petitioners) and the cutoff date prescribed by the State of Jharkhand
which is 1st August, 2013 for applications invited for the post of
Primary Teachers has been changed and the learned Single Judge has
refixed the said cutoff date as 1st July, 2011 and thereby made the
original petitioners, more eligible than what they were under the
advertisement issued by the Government of Jharkhand in the month of
November, 2013 and hence, the State of Jharkhand has preferred these
Letters Patent Appeals.
5
2. Factual Matrix
• Earlier a public advertisement was issued bearing no. 27/2011 on
26th March, 2011 for the post of Primary Teachers in the schools
at State of Jharkhand. This advertisement is at Annexure4 to the
memo of this Letters Patent Appeal (For reference of Annexures
L.P.A. No. 429 of 2014 is considered to maintain the consistency
in Annexure numbers).
• As per the aforesaid public advertisement the cutoff date, so far
as, calculation of age is concerned of the candidates who are
preferring applications was prescribed as 1st July, 2011
.
• On several grounds this public advertisement and the circulars for
appointment of Primary Teachers were under Challenge in W.P.(S)
No. 3099 of 2011 which was decided by the Division Bench of
this Court vide order dated 22nd November, 2011. This judgment
is reported as 2011(4) JLJR 387. This judgment is at Annexure8
series to the memo of L.P.A. No. 429 of 2014).
• By virtue of the aforesaid decision, the public Advertisement no.
27/2011 dated 26th March, 2011 was quashed and the
selection process was also quashed and the matter had went upto
the Hon'ble Supreme Court and the S.L.P. preferred by the State
was also dismissed.
• It further appears from the facts of the case that fresh mind was
applied by the State of Jharkhand and later on in the year, 2012
Jharkhand Primary School Teachers Recruitment Rules, 2012
(hereinafter referred to as "the Act, 2012" for the sake of brevity)
were enacted in pursuance of which Teachers Eligibility Test
(TET) was also to be undertaken and cleared by the candidates.
• This Teachers Eligibility Test (hereinafter referred to as "TET" for
the sake of brevity) was advertised in the year 2012. The
candidates applied for the same and the result of this TET
Examination declared in the year, 2013.
• Thereafter fresh advertisement for the post of Primary Teachers
was givenDistrict wise, in November, 2013 for 18000 Primary
Teachers. Cutoff date prescribed for the calculation of the age of
6
the applicants was 1st August, 2013.
• The maximum age prescribed for the candidates is as under:
Serial Category of Maximum age prescribed as on cutoff
No. Candidates date 1st August, 2013.
1 General 35 years
2. OBC 37 years
3. SC 40 years
4. ST 40 years
5. Female Candidates 38 years
6. Person with disability 5 years age relaxation
7. Omnibus and 5 years
General relaxation
for all the candidates
as per Rule 13 of the
Rules, 2012
• Thus, as per Rule 13 of the Rules, 2012 one time age relaxation
was given as 5 years for all the aforesaid categories of candidates.
• The Primary Teachers were selected and now appointment and
they are 13000 in numbers approximately.
• 2nd TET was also advertised and conducted in the month of
November, 2016 and result was published in 2017.
• Private respondents (original petitioners) challenged the cutoff
date prescribed in the public advertisement given by the State of
Jharkhand in the month of November, 2013 (Annexure7 to the
memo of L.P.A. No. 429 of 2014) and they demanded that the cut
off date should be changed as 01.07.2011 as prescribed under the
older public advertisement (Annexure4 to the memo of LPA No.
492 of 2014) because even after such a huge age relaxation still
they are age bar.
• The aforesaid contention of the private respondents in these
L.P.As. (original petitioners) was accepted by the learned Single
Judge and all the four writ petitions being:
W.P.(S) No. 7885 of 2013;
W.P.(S) No. 7122 of 2013;
W.P.(S) No. 7880 of 2013;
W.P.(S) No.576 of 2014,
7
were allowed by the learned Single Judge vide judgment and
order dated 17th September, 2014 and the cutoff date prescribed
by the Government has been changed from 1st August, 2013 to 1st
July, 2011 and hence, the original respondentState of Jharkhand
has preferred these Letters Patent Appeals.
3. Arguments canvassed by the counsel for the Appellants (State
of Jharkhand):
• Counsel for the appellants in all the aforesaid Letters Patent
Appeals submitted that cutoff date prescribed by the Government
of Jharkhand in pursuance of public advertisement for the post of
Primary Teachers given in the month of November, 2013
(Annexure7 to the memo of L.P.A. No. 429 of 2014) has been
altered by the learned Single Judge and has now reaffixed the
same as 01.07.2011 which is not permissible because whenever a
cutoff date is prescribed, there are bound to be few persons who
will fall on wrong side of the cutoff date, but, that per se cannot
be a reason to alter the cutoff date prescribed by the Government
otherwise, there will be no end of such type of desire by the
candidates. All cannot be accommodated in one advertisement.
Few candidates are bound to be within the age limit whenever
any public advertisement is given for any public post. Court
cannot accommodate everyone under Article 226 of the
Constitution of India. This aspect of the matter has not been
properly appreciated by the learned Single Judge while allowing
the writ petitions preferred by the private respondents.
• Counsel for the appellants submitted that even if the cutoff date
is altered by the learned Single Judge from 1st August, 2013 to
1st July, 2011 still there can be few candidates who are age bared
and there is no end of this phenomena and therefore, whenever
any public advertisement is given with any cutoff date there are
bound to be few persons who are not eligible to apply for the
post. Fixing cutoff date is a policy decision of the Government
and this Court will be slow in interfering with the policy decision
of the Government while exercising powers under Article 226 of
8
the Constitution of India. This aspect of the matter has also not
been properly appreciated by the learned Single Judge.
• Counsel appearing for the State of Jharkhand has further
submitted that whenever any ClassIII or ClassII posts are to be
filled up or the post of Teachers are to be filled up all cannot be
selected at a time. There are bound to be series of public
advertisements and consequently there are bound to be separate
cutoff dates for separate public advertisement. Cutoff date
which is prescribed in the 1st advertisement cannot be continued
in all the Primary Teachers are being appointed. If this argument
is accepted perhaps looking to the huge vacancy the last
advertisement may come in the year 2027 and all age barred even
after their superannuation age the candidates will be eligible to
apply and hence, every public advertisement has its own cutoff
date. There cannot be same cutoff date for more than one public
advertisements which are advertised after the interval of more
than two or three years. This aspect of the matter has not been
properly appreciated by the learned Single Judge and cutoff date
of 1st advertisement dated 26th March, 2011 (Annexure4 has
been wrongly applied in 2nd public advertisement given in the
month of November, 2013 (Annexure7). If this is allowed then as
stated hereinabove, even upto the year, 2027, the cutoff date
prescribed in the first advertisement should be continued which is
not permissible in the eye of law.
• Counsel appearing for the State submitted that the Rules have
been enacted which are known as Jharkhand Primary School
Teachers Recruitment Rules, 2012 which prescribes the clearance
of TET. Moreover, as per Rule no.13 thereof as a onetime
measurement, relaxation has been given for 5 years. These rules
are at Annexure5 to the memo of L.P.A. No.429 of 2014.
Advertisement given in the month of November, 2013 (Annexure
7) is explicitly clearer. There is no ambiguity and equivocalness.
Maximum age limit has already been prescribed as stated
hereinabove as on 1st August, 2013. For persons with a disability
9
5 years additional relaxation has been given and as per Rule 13 of
the Rules, 2012 as one time measurement further 5 years
relaxation has been given. Enough is enough. There cannot be
endless relaxation and that too, under the exercise of powers
under Article 226 of the Constitution of India.
• There no legitimate right vested in the candidates that they ought
to get age relaxation whenever they apply for the public post. Age
relaxation is a policy decision to be taken by the Government and
it varies from post to post and it also varies as per the public
need. It also varies as per the administrative exigencies. It also
varies looking to the work to be done by the appointees e.g. if a
police personnel is to be appointed too much age relaxation is
dangerous because old man cannot run likewise age relaxation
depends upon the work to be done by the selected candidates.
There are various reasons for which the cutoff date is being
prescribed by the Government. Hence, it is known as a policy
decision. This aspect of the matter has not been properly
appreciated by the learned Single Judge while quashing and
setting aside one cutoff date and while prescribing another cut
off date.
• Counsel for the State has relied upon the decisions reported in:
(a) 2012 (4) JCR 63 (Jhr.)
(b) 2008 (2) JLJR 543 (Jhr.) & other decisions
• On the basis of the aforesaid decisions, it is submitted by the
counsel for the appellants that once the cutoff date is given
clearly in the public advertisement and with enough and
adequate age relaxation inbuilt in the public advertisement
(Annexure7) the Court cannot alter the said cutoff date and
prescribed the same as 01.07.2011 merely on the ground that
earlier public advertisement (Annexure4) the cutoff date
prescribed was 01.07.2011. This aspect of the matter has not
been properly appreciated by the learned Single Judge while
deciding the writ petitions and hence, the judgment and order
passed by the learned Single Judge dated 17th September, 2014
10
deserves to be quashed and set aside.
4. Arguments canvassed by the counsel for the private
respondents in all L.P.As (original writ petitioners):
• Counsel appearing for the original petitioners submitted that no
error has been committed by the learned Single Judge while
deciding the writ petitions vide judgment and order dated 17th
September, 2014. The Court has all power, jurisdiction and
authority to prescribe cutoff date.
• Counsel appearing for the original petitioners submitted that
earlier public advertisement no.27/2011 dated 26th March, 2011
for the post of Primary Teachers (Annexure4) prescribes the cut
off date as 01.07.2011. Thereafter litigation has taken place. The
said advertisement was quashed and set aside and the selection
process was also quashed and set aside. Now when the fresh
public advertisement was given in the month of November, 2013
(Annexure7) the Government cannot alter the cutoff date as
01.08.2013. This aspect of the matter has been properly appreciated by the learned Single Judge and hence, the Letters Patent Appeals may not be entertained by this Court.
• Counsel appearing for the original petitioners relied upon the decisions reported in :
(a) 2008(3) JCR 267 (Jhr.) and
(b) 2014(1) JCR 616 (Jhr.), and submitted that even though the Government has prescribed a cutoff date more age relaxation can be given by this Court. This aspect of the matter has been properly appreciated by the learned Single Judge by allowing the writ petitions preferred by the private respondents in these Letters Patent Appeals.
• It is further submitted by the counsel for the original petitioners that they were eligible to apply for the post in question as per advertisement no. 27/2011 dated 26th March, 2011 (Annexure
4) and as per that advertisement cutoff date was 01.07.2011 for the purpose of calculation of the maximum age limit. If cutoff date as per 2nd advertisement is accepted which is 1st August, 11 2013, the original petitioners will be age barred. There are enough number of vacancies of Primary Teachers with the Government of Jharkhand and hence, even if that cutoff date is changed it will make no difference to the State of Jharkhand. This aspect of the matter has been properly appreciated by the learned Single Judge while allowing the writ petitions and hence, these Letters Patent Appeals may not be entertained by this Court.
5. Reasons:
Having heard counsels for both the sides and looking to the facts and circumstances of the case, we hereby, quash and set aside the judgment and order delivered by the learned Single Judge dated 17th September, 2014 in:
W.P.(S) No. 7885 of 2013;
W.P.(S) No. 7122 of 2013;
W.P.(S) No. 7880 of 2013; and W.P.(S) No. 576 of 2014, mainly for the following facts and reasons:
(i) Public advertisement for the post of Primary Teachers was initially, given by the State of Jharkhand on 26th March, 2011 bearing advertisement no. 27/2011. There is always cutoff date of age limit for different types of candidates and the age was to be calculated as on 01.07.2011.
(ii) The aforesaid public advertisement and selection process was under challenge in W.P.(S) No 3099 of 2011 and the Division Bench of this Court vide order dated 22nd November, 2011 quashed the public advertisement and selection process (Annexure8). The said judgment was carried upto Hon'ble Supreme Court by the State and the S.L.P. was dismissed.
(iii) It appears that thereafter, freshly, the mind was applied by the State. The selection process was more made transparent so as to avoid further arbitrariness and hence, Jharkhand Primary School Teachers Recruitment Rules, 2012 was enacted whereunder, TET was to be undertaken and cleared by those candidates who are seeking appointment as Teachers. This TET examination was over above the general selection process for the Primary Teachers.12
(iv) TET Examination was advertised in the year, 2012. The result thereof was declared in the year 2013 now these successful candidates are eligible to compete with each other in a public advertisement for the post of Primary Teachers.
(v) Fresh public advertisement was given for the post of Primary Teachers, Districtwise. These advertisements were given in the month of November, 2013. Few of such advertisements are at Annexure7 series to L.P.A. No. 429 of 2014. These fresh public advertisements have prescribed maximum age limit for different categories of the applicants as under:
Serial Category of Candidates Maximum age prescribed No. as on cutoff date 1st August, 2013 1 General 35 years
2. OBC 37 years
3. SC 40 years
4. ST 40 years
5. Female Candidates 38 years
6. Person with disability 5 years additional relaxation in age
7. One time relaxation as per 5 years Rule 13 of the Rules, 2012 And the cutoff date prescribed is 1st August, 2013.
(vi) Thus, it appears that earlier advertisement no.27/11 dated 26th March, 2011 (Annexure4) has already been contemplated and hence, in the fresh advertisement (which was given after two years), to accommodate, more candidates, general lumpsum 5 years relaxation have been given. The Government of Jharkhand could have given only two years age relaxation under Rule 13 of Rules, 2012, but, looking to the difficulties of the candidates more relaxation in the age, as one time measurement, has been given under Rule No. 13 of the Rules, 2012. This aspect of the matter has not been properly appreciated by the learned Single Judge while allowing the writ petitions.
(vii) It ought to be kept in mind that whenever any cutoff date is prescribed by the Government for the calculation of the maximum 13 age limit of different categories of the applicants, there are bound to be few candidates who are over aged. There are bound to be few candidates who are falling on a wrong side of the cutoff date that does not mean that the cutoff date prescribed by the Government is arbitrary. On the contrary, as stated hereinabove, the earlier public advertisement was just before two years of the present public advertisement (Annexure7). Nonetheless, under Rule 13 of the Rules, 2012 lumpsum general 5 years age relaxation has already been given. It should not have been endeavour of the Court, while exercising power under Article 226 of the Constitution of India to accommodate as many persons as we can otherwise, there will be no cutoff date which can be prescribed because whenever any cutoff date is prescribed few persons will be age barred.
(viii) To prescribe, a particular cutoff date, is a policy decision of the Government. In different public advertisement, different will be the cutoff date for calculating the maximum age limit. Whenever huge vacancy for any post, like Police or Primary Teachers is there with any Government, the selection process will take place, through a number of public advertisements that does not mean that whatever the cutoff date is prescribed in the 1 st advertisement, should also be continued in the 2nd public advertisement. The learned Single Judge has accepted the cutoff date prescribed in 1st public advertisement (Annexure4) as a cut off date in the 2nd public advertisement (Annexure7). This is an error in the eye of law. If this logic is accepted, then even 3rd public advertisement should have a cutoff date, which is prescribed in a 1st advertisement and so on and so forth till 18000 Primary Teachers being appointed in a subsequent years. This is not permissible in the eye of law. Cutoff date is being fixed by the Government may depend on :
(a) the post in question to be filled up;
(b) the nature of work, to be done by the selected candidates;
(c) to bring young and fresh candidate in the public posts so that fresh and young ideas can also come and for this there is 14 bound to be a filtration of the older persons, for which also different cutoff date will be prescribed in a different public advertisements.
(d) the administrative exigencies.
(e) the economic aspect of the Government.
(ix) Every time it is not necessary that a person having more age is more wise. Court cannot alter this type of policy decision taken by the Government by exercising powers under Article 226 of the Constitution of India. This aspect of the matter has not been properly appreciated by the learned Single Judge while allowing the writ petitions and thereby while changing the cutoff date.
(x) Already, enough age relaxation has been given in the 2nd public advertisement published, in the month of November, 2013 (Annexure7) e.g. for SC or ST candidates maximum age limit is 40 years. If he is a person with a disability his maximum age limit will be 40+5 and as per Rule No.13 of the Rules, 2012 there is a 5 years age relaxation. Thus, 40+5+5=50. Thus, a candidate of 50 years can also apply for a post, for which the age of superannuation is 60 years. If this Court is again giving further relaxation in age, perhaps, before a couple of months of his retirement, few candidates, can be appointed which is also not permissible in the eye of law. Which person of maximum age should be appointed as a Primary Teacher is to be decided by the Government which is known as a policy decision. This maximum age limit will vary from public post to public post. It cannot be re fixed under Article 226 of the Constitution of India otherwise, in the appointment of Police also the age relaxation will be sought for and a person of advance age or much nearer to superannuation may be appointed as a Police and hence, such decision for prescribing maximum age limit is prerogative power of the Government. Whenever there is power vested in one person, there is no corresponding right vested in another person. It is a power vested in the Government, to prescribe a cutoff date or maximum age limit hence, there is no corresponding right vested in the 15 candidate to get the age relaxation and if there is no right vested in the candidate to get the age relaxation, there is no corresponding duty vested in the Government, to give the age relaxation and if there is no duty vested in the Government to give age relaxation no writ of mandamus can be issued upon the Government for grant of age relaxation. This aspect of the matter has not been properly appreciated by the learned Single Judge while allowing the writ petitions.
(xi) 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 196768 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide 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 CustodianGeneral, 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)
(xii) 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:
16"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."
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).
(xiii) It has been held by the Hon'ble Supreme Court in the case of 17 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.
8. Having known the legal parameters within which we have to function, let it be seen whether fixation of 1st August as cutoff 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 cutoff 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 cutoff 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)
(xiv) 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:
18"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 256 1975 and were continuing at the time of the commencement of the Ordinance i.e. 1261978 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 2561975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. 1261978 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 read reasonably. Therefore on a proper construction it means that all temporary lecturers who were appointed as such on or before 2561975 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 2561975 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 2661975 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 wellsettled 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)
(xv) 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: "
19"5. This contention, in our view, is not sustainable. In the first place the fixing of a cutoff date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cutoff date for determining the maximum or minimum age required for a post, is in the discretion of the rulemaking 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 cutoff date is fixed there will be some persons who fall on the right side of the cutoff date and some persons who will fall on the wrong side of the cutoff date. That cannot make the cutoff date, per se, arbitrary unless the cutoff 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 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 cutoff 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 cutoff date should be with reference to a fixed date. Therefore, fixing an independent cutoff date, far from being arbitrary, makes for certainty in determining the maximum age.
xx xx xx
7. In the present case, the cutoff 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 cutoff 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 timegap between the advertisement and the cutoff date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of 20 applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cutoff date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cutoff date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cutoff date. But there is no basis for urging that this is the only reasonable cutoff date. Even such a date is liable to question in given circumstances. In the first place, making a cutoff 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 cutoff date may well contend that the cutoff date is unfair, since the advertisement could have been issued earlier; or in the alternative that the cutoff date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cutoff 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 cutoff date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cutoff date can be the last date for receiving applications, appears to be without any basis. In our view the cutoff 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 agelimit; 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 agebarred. 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 cutoff 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 cutoff 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) 21 (xvi) 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 3132003 as a cutoff date for eligibility, it would have been explicitly specified. The Division Bench has referred to the Circular dated 2232002 issued by the Department of General Administration of the State 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 agelimit for appointment in government services will be thirtyfive 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 cutoff 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) (xvii) 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, 31121993, as fixed by notification dated 2161995, in the matter of grant of exemption 22 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, 31121993, 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 cutoff 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 view.
......................................"
(Emphasis Supplied) (xviii) 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 cutoff 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) (xix) It has been held by the Hon'ble Supreme Court in the case of Ramrao v. All India Backward Class Bank Employees Welfare 23 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 promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cutoff 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 cutoff 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 cutoff date can be provided in terms of the provisions of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary1 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 cutoff 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 cutoff date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cutoff 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 cutoff 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. 7677, paras 1315) "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 cutoff date in the case of introducing a new pension scheme. The Court negatived the claim of the persons who had retired prior to the cutoff 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 24 matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cutoff date on some rational or reasonable basis has to be fixed for extending the benefits.
14. 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 1241976. Later on, the statutory rules were amended by notification dated 18111976 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 ViceChairman & Managing Director, A.P. SIDC Ltd. v. R.Varaprasad in relation to "cutoff" 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 cutoff 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 cutoff 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) (xx) 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 fiftyfive 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 agelimit at the time of making the applications for appointment and, therefore, were within the agelimit at the time 25 of initial appointment and were, therefore, entitled to relaxation of age in terms of the judgment passed by the High Court 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 nonabsorption, 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 cutoff date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any nonprescription 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 cutoff 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 cutoff 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) (xxi) It has been held by the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan & others v. Sajal Kumar Roy & 26 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 recru itment known as the Education Code for Kendriya Vidyalayas. Article 45 of the said Code provides for agelimit in the following terms:
"45. Agelimits The following upper agelimits have been prescribed for recruitment to the posts:
Assistant Commissioner 3040 years
Principal 3550 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 1825 years
The upper agelimits 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. Agelimit is prescribed for appointment to the general category of employees. The upper agelimit 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 agelimit. 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 agelimits. 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 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) 27 (xxii) 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 cutoff 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 cutoff dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cutoff 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 cutoff 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 cutoff 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 cutoff 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 cutoff 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 counteraffidavit of the Government or the executive authority as to why a particular cutoff date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cutoff 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) (xxiii) In view of the aforesaid decisions, the cutoff date prescribed by the Government of Jharkhand in the advertisement given in the month of November, 2013 (Annexure7 to the memo of L.P.A. No. 429 of 2014) cannot be quashed and much less it can be refixed by the High Court as 01.07.2011 while exercising 28 powers under Article 226 of the Constitution of India. Charity beyond law is a cruelty to others. If this Court is refixing the cut off date as 01.07.2011 then it will cause further injustice to other candidates who are still waiting for more age relaxation and perhaps, there is no end of such type of age relaxation to be given by this Court.
(xxiv) Infact there is no arbitrariness by the Government in fixing the cutoff date as 01.08.2013 because:
(a) public advertisement was given in the month of November, 2013 (Annexure7 to the memo of L.P.A. No. 429 of 2014). There are several decisions of Hon'ble Supreme Court like, which prescribes that even if no cutoff date is prescribed then also the cutoff date will be presumed as a date of advertisement. Here, advertisement is given in the month of November, 2013 whereas, cutoff date prescribed is 01.08.2013 so as to accommodate few more candidates.
(b) looking to the public advertisement given in the month of November, 2013 enough age relaxation has been given as stated herinabove for candidates with a disability of 5 years additional relaxation and under Rule 13 of the Rules, 2012 general lumpsum one time age relaxation of 5 years has been given. Enough is enough.
(c) earlier public advertisement no. 27/2011 was issued on 26th March, 2011 (Annexure4) wherein the cutoff date is prescribed as 01.07.2011. If cutoff date prescribed in older public advertisement, is to be appreciated then in the 2nd public advertisement given in the month of November, 2013 (Annexure7) suffice it was for the Government of Jharkhand to give the age relaxation two years and four months, but, the Government has given more age relaxation i.e. 5 years as one time measurement under Rule 13 of the Rules, 2012 so as to accommodate all those candidates, who were eligible to prefer applications as per older advertisement bearing no.27/2011 dated 26th March, 2011.
(d) it appears from the facts of the present case that 29 Government has given much more age relaxation of 5 years, instead of, two and half years, as per 2 nd advertisement with a cutoff date of 01.08.2013 whereas, the learned Single Judge has kept the age relaxation as it is and has changed the cutoff date from 01.08.2013 to 01.07.2011. Thus, further age relaxation has been given of approximately two years by this Court. We cannot accommodate all the candidates by any imaginary cutoff date because whenever any cutoff date is prescribed there are few candidates who will be age barred and therefore, once the Government is prescribing cutoff date with some age relaxation, no further age relaxation can be given and the prescription of the cutoff date dated 01.08.2013 is absolutely scientific and not arbitrary. 2nd cutoff date given in 2nd public advertisement has already kept in mind the earlier cutoff date and earlier public advertisement which was approximately two years and six months earlier for which double the age relaxation has been given i.e. 5 years. These aspects of the matter have not been properly appreciated by the learned Single Judge while quashing the cutoff date and refixing the cutoff date.
(xxv) The cutoff date prescribed by the Government of Jharkhand in 2nd public advertisement given in the month of November, 2013 (Annexure7) cannot be lebelled as arbitrary, capricious or whimsical on the contrary, it has been prescribed keeping in mind the earlier advertisement which was given before two and half years for which already five years age relaxation has been given under Rule 13 of the Rules, 2012.
6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we hereby, quash and set aside the judgment delivered by the learned Single Judge dated 17th September, 2014 in W.P.(S) No. 7885 of 2013;
W.P.(S) No. 7122 of 2013;
W.P.(S) No. 7880 of 2013; and W.P.(S) No. 576 of 2014.
These Letters Patent Appeals are allowed and disposed of. All 30 the Interlocutory Applications preferred in the aforesaid Letters Patent Appeals are also disposed of, in view of the final order passed in main petition.
(D.N. Patel, A.C. J.) (Amitav K. Gupta, J.) VK/AFR