Jharkhand High Court
Krishna Kumar Mishra vs State Of Jharkhand Through The ... on 21 February, 2018
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.6302 of 2017
Krishna Kumar Mishra, S/o Dhaneshwar Mishra, residing at
Indrapuri Road, Sukhdeonagar, P.O. Hehal, P.S. Sukhdeonagar,
District Ranchi ..... Petitioner
Versus
1. State of Jharkhand through the Principal Secretary/
Secretary, Personnel Administrative Reforms and
Rajbhasha Department, Government of Jharkhand
having its office at Project Building, P.O. & P.S. Dhurwa
District Ranchi
2. High Court of Jharkhand at Ranchi through its Registrar
General, having its office at Doranda, P.O. & P.S.
Doranda, District Ranchi ..... Respondents
With
W.P.(S) No.6204 of 2017
1. Bageshwar Singh, S/o Shri Ramdeo Singh, R/o J-56,
Shyamli Colony, P.O. & P.S. Doranda, District - Ranchi
2. Shailesh Kumar Sinha, S/o Shri Jugal Kishore Prasad, R/o
H/85, Argora Housing Colony, P.O. Doranda, P.S. Argora,
District Ranchi
3. Prashant Kumar, S/o Late Ram Nandan Sahay, R/o
Ramayan, Kusum Vihar, Morabadi, P.O. Morabadi, P.S.
Bariatu, District Ranchi
4. Amarendra Kumar, S/o Shri Braj Kishore Pandey, R/o
Opposite Chhath Talab, Near Old Argora Chowk, P.O.
Doranda, P.S. Argora, District Ranchi ..... Petitioners
Versus
1. The State of Jharkhand
2. High Court of Jharkhand through the Registrar General,
Jharkhand High Court, P.O. & P.S. Doranda, District
Ranchi ..... Respondents
With
W.P.(S) No.6699 of 2017
1. Om Prakash Tiwary, S/o Birendra Kumar Tiwary, R/o
Mohalla - Sitlasthan Road, P.S. - Tilkamanjhi, P.O. -
Bhagalpur, District Bhagalpur (Bihar)
2. Rajesh Kumar Pandey, S/o Late Bachneshwar Pandey, R/o
Shrinagar, P.O. - Shrinagar, P.S. - Pirpainti, District -
Bhagalpur (Bihar)
3. Kumar Ranbir Mishra, S/o Rudra Narayan Mishra, R/o at
Red Cross Road, PO. - Bhagalpur, P.S. - Adampur, District
- Bhagalpur (Bihar)
4. Ashutosh, S/o Late Nawal Kishore Prasad Sinha, R/o Nec
Naam Shah Dargah Lane, Bhikanpur Gumti No.-2, P.O. -
Bhagalpur, P.S. - Ishakchak, District - Bhagalpur (Bihar)
..... Petitioners
Versus
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1. The State of Jharkhand
2. The Registrar General, Jharkhand High Court, Ranchi,
P.O. & P.S. Doranda, District Ranchi
3. The Law Secretary, Dept. of Law & Justice, Govt. of
Jharkhand, Project Building, P.O. - Dhurwa, P.S. -
Jagarnathpur, District - Ranchi ..... Respondents
---------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE AMITAV K. GUPTA
---------
For the Petitioners : Mr. Rajiv Ranjan, Sr. Advocate
(In W.P.S No.6302 of 2017)
Mr. Rajiv N. Prasad & Mr. S. K.
Pandey, Advocates
(In W.P.S No.6204 of 2017)
Mr. Manoj Kumar Sah, Advocate
(In W.P.S No.6699 of 2017)
For the State : Mr. Atanu Banerjee, G.A.
Mr. V. K. Prasad,, Advocate
Mr. Kumar Sundaram, Advocate
Mr. S. R. Zafar, Advocate
For the High Court : Mr. S. Srivastav, Advocate
---------
05/Dated: 21st February, 2018
Oral Order
Per D.N. Patel, A.C.J
1. These writ petitions have been preferred by the
petitioners for change of cut-off date which is prescribed
in the public advertisement for the post of District
Judges from the Bar. Advertisement No.1 of 2017 was
issued on 13.10.2017 in the public Newspaper and the
cut-off date for the age of the candidates is 31.01.2016
as per Rule 9 of the Jharkhand Superior Judicial
Services (Recruitment, Appointment and
Conditions of Service) Rules, 2001 (for the sake of
brevity hereinafter referred to as 'the Rules, 2001').
The minimum age was 35 years and the maximum age
limit was 45 years for the general category candidates as
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on 31.01.2016. These petitioners are claiming change of
cut-off date instead of 31.01.2016, it should be
31.01.2011 (as prayed in W.P.(S) No.6204 of 2017 as well
as in W.P.(S) No.6699 of 2017), whereas in another writ
petition, there is prayer that cut-off date should be
instead of 31.01.2016, it should have been 31.01.2013
(as prayed in W.P.(S) No.6302 of 2017). Thus, for change
of cut-off date and for accepting "accommodative
approach", these writ petitions have been preferred.
2. Factual Matrix
● Public advertisement No.1 of 2017 has been given
in the Newspaper inviting applications for the post of
District Judges from the Bar. The total vacancy
advertised is 17.
● Rule 9 of the Rules, 2001 reads as under :-
"9. Eligibility : A candidate shall be eligible to be
appointed as an Additional District Judge under these
Rules, if :
(a) he is above the age of 35 years and below the
age of 45 years as on the last day of January
preceding the year in which the examination is held;
provided that in the case of candidate belonging to
scheduled caste or scheduled tribe, there may be a
relaxation of upper age limit by three years;
(b) is a graduate in law from a University
recognized for the purpose of enrollment as an
Advocate under the Advocates' Act, 1961;
(c) has an experience of more than seven years at
the Bar as a practicing Advocate after having been
duly enrolled as such under the Advocates, Act, 1961;
(d) Possesses good health, is of sound moral
character and is not involved in, or related any
criminal case of any type involving moral turpitude."
(Emphasis supplied)
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● The petitioners in all the aforesaid writ petitions
are general category candidates, and hence, as on cut-
off date, i.e., 31.01.2016 the minimum age should be 35
years and maximum should be 45 years only. Thus,
general category candidates can apply for the post in
question.
● Preliminary examination for the aforesaid post is
going to be conducted after 4 days, i.e., on 25.02.2018.
As the advertisement was given in the year 2017, the
cut-off date of all the candidates is 31.01.2016 which is
eventually applicable to all the general category
candidates and other candidates for calculation of their
age limit.
● The last date for preferring the application was
15.11.2017, whereas writ petition being W.P.(S) No.6699
of 2017 has been filed on 17.11.2017 with a prayer of
change of cut-off date so as to accommodate the
petitioners.
● In W.P.(S) No.6302 of 2017, the date of birth of the
petitioner - Krishna Kumar Mishra, is 01.12.1970, and
hence, his age as on cut-off date 31.01.2016, is 45 years
and 02 months. Thus, this petitioner is seeking cut-off
date to be shifted for two months which can be
30.11.2015. Nonetheless, in this writ petition prayer for
change of cut-off date is demanded by this petitioner is
31.01.2013. We do not see any reason of such prayer
which includes two more years, though not required for
this petitioner.
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● There are four petitioners in W.P.(S) No.6204 of
2017 and the date of birth of the petitioners are as
follows :-
Petitioner Date of Age as on 31.01.2016
Numbers Birth
Petitioner No.1 11/02/69 46 years & 11 months
Petitioner No.2 27/05/70 45 years & 08 months
Petitioner No.3 06/01/71 45 years & 25 days
Petitioner No.4 01/01/69 47 years.
● In writ petition being W.P.(S) No.6699 of 2017, the
date of birth of the petitioners are as under :-
Petitioner Date of Age as on 31.01.2016
Numbers Birth
Petitioner No.1 15/01/68 48 years & 16 days
Petitioner No.2 28/12/66 49 years, 1 month & 3 days
Petitioner No.3 01/01/67 49 years 1 month
Petitioner No.4 15/08/69 46 years & 04 months
● Thus, these petitioners are seeking separate cut-off
date instead of 31.01.2016 so that they can also be
accommodated and so that they can be more eligible
than what is prescribed under Rule 9 of the Rules, 2001.
● Thus, all these petitions have prayed for change of
cut-off date from 31.01.2016 to 31.01.2011 (as prayed in
W.P.(S) No.6204 of 2017 as well as in W.P.(S) No.6699 of
2017) and 31.01.2013 (as prayed in W.P.(S) No.6302 of
2017).
3. The arguments canvassed by the counsels for
the petitioners :
I. Senior counsel, Mr. Rajiv Ranjan, has submitted
that the date of preliminary examination is 25.02.2018,
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i.e., after 04 days, and hence, let these petitioners be
allowed to appear in the ensuing examination or the
matter may be finally heard by this Court.
II. It is further submitted by the counsel for the
petitioners that change of cut-off date is necessary
because earlier the examination for the post of District
Judges was conducted in the year 2011 and this
examination is conducted after 07 years. In fact cut-off
date should have been 31.01.2011.
III. It is further submitted by the counsel for the
petitioners that in the several decisions given by this
Court, the cut-off date has been altered and reliance has
placed upon the decisions reported in 2008 (2) JLJR
543; 2005 (3) JCR 505; (2006) 9 SCC 507; 2014 (1)
JLJR 217 (for the interim relief) and the judgment and
order dated 16.01.2014 in W.P.(S) No.7526 of 2013.
On the basis of the aforesaid decisions, it is submitted by
the learned senior counsel that cut-off date can always
be altered by this Court. In a decision given in W.P.(S)
No.7526 of 2013, cut-off date was shifted from
31.01.2013 to 31.01.2009. Every year examination is not
being conducted though it is required as per the
judgment delivered by the Hon'ble Supreme Court
reported in (2006) 9 SCC 507, and hence, let the cut-
off date be shifted from 31.01.2016 to 31.01.2011 so that
all these petitioners may be accommodated.
IV. It is also submitted by the counsels for the
petitioners that vacancies are of the year 2011, and
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hence, the cut-off date should be prescribed as on
31.01.2011.
4. Arguments canvassed by the counsels for the
respondents :
I. Counsel appearing for the respondents submitted
that advertisement No.1 of 2017, which has been given
on 13.10.2017 for the post of District Judges from the
Bar, is in consonance with the Rule 9 of the Rules, 2001.
II. The validity of this Rule, 2001 is not under
challenge at all looking to the prayers in the aforesaid
writ petitions.
III. It is further submitted by the counsels for the
respondents that as the advertisement was published on
31.10.2017, the cut-off date prescribed is 31.01.2016
and these petitioners are over age as on 31.01.2016,
some by few days, some by few months, some by few
years and some of the petitioners are over age by limited
years. If any accommodative approach is propounded by
this Court then other candidates may also apply to this
Court and again the cut-off date will have to be changed.
IV. It is further submitted by the counsels for the
respondents that prescribing a cut-off date is the
prerogative powers of the rule making authority and
unless such cut-off date is capricious, whimsical or
unless it is very wide off mark as to make it wholly
unreasonable, such cut-off date may not be altered by
this Court.
V. It is further submitted by the counsels for the
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respondents that whenever a cut-off date is prescribed it
will be bound for few candidates, who will fall on the
wrong side of the cut-off date. Whenever any cut-off date
is prescribed, it will be bound for few candidates who
will be over age. All cannot be accommodated.
VI. It is further submitted by the counsels for the
respondents that there cannot be any cut-off date which
never makes the candidates over age. If this type of
petitions are allowed, then it will be injustice to those
candidates who have not applied for the post in question
thinking that they are over age as on 31.01.2016. In fact
prescription of the cut-off date is the prerogative power
of the rule making authority, and hence, there is no
corresponding right vested in any of the citizens. That
there is right vested in all the citizens to have a
particular type of cut-off date there is no corresponding
duty vested in the rule making authority, much less there
is public duty vested in the respondents, and hence, no
writ of mandamus can be issued upon the respondents to
change the cut-off date. Thus, once there is power
vested in the respondents to prescribe a cut-off date, it
cannot be equated with public duty of the respondents,
and hence, no writ of mandamus can be issued for the so
called breach of the public duty.
VII. It is further submitted by the counsels for the
respondents that power of judicial review under Article
226 of the Constitution of India may not be exercised for
alteration of the cut-off date otherwise, every now and
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then, such type of dates re-fixed by the order of the
Court will also be required to be altered, because even
after alteration of the cut-off date still there will be few
candidates who will be again over age, and if such type
of accommodative approach is propounded by this Court,
perhaps a candidate having the age of 59 years and 6
months can also apply for the post in question, the age of
superannuation is 60 years.
VIII. It is further submitted by the counsels for the
respondents that even to accommodate these petitioners
in only these three writ petitions, also no lumpsum or
general concession can be given by altering the cut-off
date. Such type of lumpsum, general or wholesale
concession cannot be given by this Court in view of the
decisions rendered by the Hon'ble Supreme Court,
which are as under :-
(a) (1975) 1 SCC 305;
(b) AIR 1985 SC 1367;
(c) (1990) 2 SCC 669;
(d) (1990) 3 SCC 368;
(e) (1994) 4 SCC 212;
(f) (1996) 10 SCC 536;
(g) (1997) 6 SCC 614
(h) (2003) 9 SCC 519;
(i) (2004) 2 SCC 76;
(j) (2006) 8 SCC 671
(k) (2008) 14 SCC 702; and
(l) (2009) 9 SCC 135.
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IX. It is further submitted by the counsels for the
respondents that judgment delivered by this Court, as
relied upon by the counsels for the petitioners are per
incuriam judgment and they are indirectly over-ruled.
X. It is further submitted by the counsels for the
respondents that the judgment delivered by the Division
Bench of this Court which is based on the concession
given by the Advocate General, is of no help to the
petitioners and said judgment is reported in 2008 (2)
JLJR 543 = 2008 (3) JCR 267.
XI. Counsels appearing for the respondents submitted
that if the judgment delivered by this Court is per
incuriam, i.e., out of ignorance or by ignoring several
decisions delivered by the Hon'ble Supreme Court, are
of no help to these petitioners, and these writ petitions
may not be allowed on the basis of the per incuriam
decision or which are indirectly over-ruled decision. To
fortify this contention, counsel for the respondents have
relied upon the decisions rendered by the Hon'ble
Supreme Court, which are as under:-
(a) (1989) 1 SCC 101;
(b) (1991) 4 SCC 139;
(c) (2004) 13 SCC 217;
(d) (2014) 7 SCC 663;
(e) (2014) 12 SCC 696;
(f) (2015) 4 SCC 1;
(g) (2015) 10 SCC 333; and
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(h) (2017) 4 SCC 760.
XII. Counsels appearing for the respondents submitted
that prescription of the cut-off date is a policy decision of
the respondents. Prescription of the cut-off date is a
complex phenomena and depends upon the several
factors, such as, which age group candidates should be
selected with a maximum limit of the age, is the
prerogative power of the respondents.
XIII. On the basis of the aforesaid decisions, it is jointly
submitted by the counsels for the respondents that cut-
off date prescribed under Rule 9 of the Rules, 2001,
which is 31.01.2016, may not be altered just to
accommodate these petitioners, otherwise there will be
no end of re-fixation of the cut-off date, hence, these writ
petitions may not be entertained by this Court.
Reasons :
5. Having heard counsels for both the sides and
looking to the facts and circumstances of the case,
reasons and judicial pronouncements, we see no reason
to entertain these writ petitions mainly for the following
facts, reasons and judicial pronouncements :-
I. Advertisement No.1 of 2017 was given in the
widely circulated local Newspaper and thereafter on the
website also inviting applications for the post of District
Judges from the Bar.
II. These appointments are being governed by the
Jharkhand Superior Judicial Services (Recruitment,
Appointment and Conditions of Service) Rules,
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2001. Advertisement No.1 of 2017 was given as per Rule
9 of the Rules, 2001, and as per the Rule, general
category candidates should have an age as on
31.01.2016 more than 35 years and less than 45 years.
III. These writ petitioners in above three writ petitions,
as stated here-in-above, are of different age group as on
31.01.2016 varying from 50 years to 45 years and 25
days. Now, these candidates are in search of change of
cut-off date so that all can prefer applications for the
post of District Judges, which is not permissible in the
eye of law.
IV. To prescribe a cut-off date is a policy decision of
the respondents and just to accommodate the
petitioners, the cut-off date cannot be altered by this
Court while exercising the power under Article 226 of
the Constitution of India.
V. Even if, the cut-off date is altered by this Court,
there will be still few candidates, who will fall on wrong
side of cut-off date. There cannot be any cut-off date
whereby nobody feel aggrieved. There are bound to be
few persons who will be over age, even if cut-off date is
altered by this Court, and hence no such
"accommodative approach" can be adopted by this
Court while exercising power of judicial review.
VI. No right is vested in these petitioners to have a
particular type of cut-off date, so that they can apply for
the post in question. Similarly, there is no duty vested in
the respondents, to fix a particular type of cut-off date so
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that there may not be any aggrieved party. On the
contrary, prescription of a cut-off date is a prerogative
power of the respondents-authority and hence there is
no corresponding right vested in the petitioners. Once
there is no public duty vested in the respondents to
prescribe a particular cut-off date, no writ of mandamus
can be issued upon the respondents. Neither any law nor
any cut-off date nor any judgment can accommodate all.
VII. If these type of petitions are allowed just to
accommodate these petitioners, then every now and then
similar type of matters will come to the Court, and if we
allow a candidate aged about 49 years to prefer an
application, then why not to a candidate aged about 50
years. If we allow a candidate aged about 50 years, then
why not all the candidates aged about 55 years and so
forth, and slowly this cut-off date will allow a candidate
to prefer an application for the post in question just
before couple of days of the age of his superannuation.
This is not permissible in the eye of law. Unless the cut-
off date is whimsical, capricious, arbitrary or wide off
the mark, as to make it wholly unreasonable, it cannot
be altered by the Court. In this eventualities only, the
cut-off date can be further scrutinized by this Court.
Looking to the facts of the present case, the prescription
of the cut-off date, i.e., 31.01.2016 is in consonance with
the Rule 9 of the Rules, 2001. Rule 9 has already been
quoted under the heading 'Factual Matrix'. As
advertisement was given in the year 2017, cut-off date
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has been prescribed as 31.01.2016 which is equally
applicable to all the candidates, reserved and
unreserved category of candidates.
VIII. It has been held by the Hon'ble Supreme Court in
the case of Union of India & Another Vs. M/s
Parameswaran Match Works & Others, reported in
(1975) 1 SCC 305, in paragraph no.10, which reads 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 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)
VIX. It has been held by the Hon'ble Supreme Court in
the case of Dr. (Mrs.) Sushma Sharma Vs. State of
Rajasthan & Ors., reported in A.I.R, 1985 SC 1367, in
paragraph no.29, which read as under :
"29. The object of this legislation was to provide for
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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
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)
X. It has been held by the Hon'ble Supreme Court in
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the case of A.P. Public Service Commission Vs. B.
Sarat Chandra, reported in (1990) 2 SCC 669, in
paragraph nos.6, 7 & 8, which read 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."
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.
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(emphasis supplied)
XI. It has been held by the Hon'ble Supreme Court in
the case of State of Bihar Vs. Ramjee Prasad,
reported in (1990) 3 SCC 368, in paragraph no.8,
which reads 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)
XII. It has been held by the Hon'ble Supreme Court in
the case of Union of India and Another Vs. Sudhir
Kumar Jaiswal, reported in (1994) 4 SCC 212, in
paragraph nos.7, 8 & 11, which read 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
- 18 -
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 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.
xx xx xx
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)
XIII. It has been held by the Hon'ble Supreme Court in
the case of University Grants Commission Vs.
Sadhana Chaudhary & Ors., reported in (1996) 10
SCC 536, in paragraph no.21, which reads 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
- 19 -
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
view. ......
(emphasis supplied)
XIV. It has been held by the Hon'ble Supreme Court in
the case of Dr. Ami Lal Bhat Vs. State of Rajasthan
& Ors., reported in (1997) 6 SCC 614, in paragraph
nos.5, 7, 11 and 17, which read 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 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
- 20 -
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.
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 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.
11. In our view this kind of an interpretation cannot be
- 21 -
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.
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)
XV. It has been held by the Hon'ble Supreme Court in
the case of Shankar K. Mandal & Others Vs. State of
Bihar & Others., reported in (2003) 9 SCC 519, in
paragraph no.5, which reads 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 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
- 22 -
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)
XVI. It has been held by the Hon'ble Supreme Court in
the case of Ramrao Vs. All India Backward Class
Bank Employees Welfare Assn., reported in (2004) 2
SCC 76, in paragraph nos.29 to 36, which read as
under :
- 23 -
"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
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
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 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
- 24 -
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.
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 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)
XVII. It has been held by the Hon'ble Supreme Court in
the case of Kendriya Vidyalaya Sangathan & Others
Vs. Sajal Kumar Roy & Ors., reported in (2006) 8
SCC 671, in paragraph nos.10 & 11, which read 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
- 25 -
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 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 Vs. N.
Subbarayudu., reported in (2008) 14 SCC 702, in
paragraph nos.5 to 9, which read as under :
"5. In a catena of decisions of this Court it has been held
- 26 -
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.
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 NathGoyal.
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.
SadhanaChaudhary, 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. It has been held by the Hon'ble Supreme Court in
the case of Public Service Commission & Ors. Vs.
Arvind Singh Chauhan & Ors., reported in (2009) 9
SCC 135, in paragraph nos.19, 20, 23 and 24, which
read 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
- 27 -
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 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)
XX. In view of the aforesaid decisions rendered by the
Hon'ble Supreme Court, we see no reason to change the
cut-off date from 31.01.2016 to 31.01.2011 (as prayed in
W.P.(S) No.6204 of 2017 as well as in W.P.(S) No.6699 of
2017), neither there is any reason to alter the same and
to re-fix it as 31.01.2013 (as prayed in W.P.(S) No.6302 of
2017).
XXI. In the above writ petitions, two types of prayers
are made for two cut-off dates. Thus, if these petitions
are allowed there shall be "fluctuating cut-off date"
which is also not permissible. "Fluctuating cut-off date"
is nothing but "an accommodative approach", which is
not permissible.
XXII. Whenever any cut-off date is prescribed, the
- 28 -
candidates will be divided in two types of classes, one
class will be of the candidates who are of the age of
maximum 45 years as a general category candidate as
on 31.01.2016, whereas another class will be more than
45 years of age, as general category candidate as on
31.01.2016. This classification is always valid even
though no specific reasons have been assigned for grant
of cut-off date as held by the Hon'ble Supreme Court of
India in the case of Union of India & Another Vs. M/s
Parameswaran Match Works & Others, reported in
(1975) 1 SCC 305, and in the case of University
Grants Commission Vs. Sadhana Chaudhary & Ors.,
reported in (1996) 10 SCC 536. Cut-off date is
prescribed by the respondents keeping in mind the
several facts and circumstances.
XXIII. Fixing cut-off date is a complex phenomenon and
it is a policy decision of the respondents. Several factors
are involved in fixing the cut-off date like it is a free
volition of the respondent - Government to allow a
particular age group candidates, looking to the need of
the State Government. Sometimes from the very
beginning if the elderly persons are recruited they will
be slow in adopting new techniques, like using
information technology.
Per incuriam judgments:-
XXIV. Much has been argued out by the counsel for the
petitioners about the decision rendered by the Division
Bench of this Court, reported in 2005 (3) JCR 505 and
- 29 -
2008 (2) JLJR 543 as well as the judgment delivered in
W.P.(S) No.7524 of 2013 dated 16.01.2014, for change
of cut-off date. None of the aforesaid judgments are
helpful to the petitioners mainly for the following
reasons :-
(a) If any judgment is delivered out of ignorance,
such type of judgment is known as per incuriam
judgment;
(b) If the earlier catena of decisions, rendered by
the Hon'ble Supreme Court, have never been cited
before the earlier Division Bench nor the same
have been discussed by the earlier Division Bench,
and out of this type of ignorance, if any judgment
is delivered then such type of judgments are per
incuriam and impliedly overruled and the ratio
propounded by such type of judgments are not
binding.
(c) 'Incuria' literally means carelessness. In
practice per incuriam is taken to mean per
ignorantium. 'Per Incuriam' are those decisions
given in ignorance in forgetfulness of some
inconsistent statutory provision or of some
authority binding on the court concerned.
(d) Any declaration or conclusion arrived without
application of mind or preceded without any
reason cannot be deemed to be declaration of law
or authority of a general nature binding as a
precedent. Restraint in dissenting or overruling is
- 30 -
for sake of stability and uniformity but rigidity
beyond reasonable limits is inimical to the growth
of law.
(e) The rule of per incuriam can be applied
where a Court omits to consider a binding
precedent of the same Court or the superior Court
rendered on the same issue deciding that issue.
(f) Therefore, when a Court delivers a judgment
in obvious inadvertence or oversight of a plain
statutory authority running counter to the reason
and result reached, it may not have the sway of
binding precedent. This is more so the case than
such omission is obtrusive and glaring.
(g) A decision or judgment can also be held to
be per incuriam if it is not possible to reconcile its
ratio with that of a previously pronounced
judgment of co-equal or larger Bench.
(h) A judgment in which there is no consideration
of the principle of law and thus, the said order
without there being contest on the principle of law
cannot be treated as a precedent for deciding the
legal issue at hand.
(i) Any decision of the High Court which has
taken a view contrary to the decision of the
Supreme Court would stand overruled as a
consequence of the same.
(j) In a matter wherein the decision of the
Supreme Court holds binding authority, and same
- 31 -
has been erroneously ignored, then any
subsequent decision must implicitly follow the
decision of the Supreme Court holding such
ignorant judgment as impliedly overruled.
(k) It has been held by the Hon'ble Supreme
Court in the case of A. R. Antulay Vs. R. S.
Nayak, reported in (1988) 2 SCC 602, in
paragraph no.42, which reads as under :-
"42. It appears that when this Court gave the
aforesaid directions on 16-2-1984, for the disposal of
the case against the appellant by the High Court, the
directions were given oblivious of the relevant
provisions or law and the decision in Anwar Ali
Sarkar case. See Hulsbury's Laws of England, 4th
Edn., Vol. 26, page 297, para 578 and page 300, the
relevant notes 8, 11 and 15; Dias on Jurisprudence,
5th Edn., pages 128 and 130; Young v. Bristol
Aeroplane Co. Ltd. Also see the observations of Lord
Goddard in Moore v. Hewitt and Penny v. Nicholas.
"Per incuriam" are those decisions given in
ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on
the court concerned, so that in such cases some part
of the decision or some step in the reasoning on
which it is based, is found, on that account to be
demonstrably wrong. See Morelle v. Wakeling. Also
see State of Orissa v. Titaghur Paper Mills Co. Ltd.
We are of the opinion that in view of the clear
provisions of Section 7(2) of the Criminal Law
Amendment Act, 1952 and Articles 14 and 21 of the
Constitution, these directions were legally wrong."
(Emphasis supplied)
(d) It has been held by the Hon'ble Supreme
Court in the case of Punjab Land Development
and Reclamation Corpn. Ltd. Vs. Presiding
Officer, Labour Court, reported in (1990) 3
SCC 682, in paragraph no.40, which reads as
under :-
"40. We now deal with the question of per incuriam
by reason of allegedly not following the Constitution
Bench decisions. The Latin expression per incuriam
means through inadvertence. A decision can be said
generally to be given per incuriam when this Court
has acted in ignorance of a previous decision of its
own or when a High Court has acted in ignorance of
- 32 -
a decision of this Court. It cannot be doubted that
Article 141 embodies, as a rule of law, the doctrine
of precedents on which our judicial system is based.
In Bengal Immunity Company Ltd. v. State of Bihar,
it was held that the words of Article 141, "binding on
all courts within the territory of India", though wide
enough to include the Supreme Court, do not include
the Supreme Court itself, and it is not bound by its
own judgments but is free to reconsider them in
appropriate cases. This is necessary for proper
development of law and justice. May be for the same
reasons before judgments were given in the House of
Lords and Re Dawson's Settlement Lloyds Bank Ltd.
v. Dawson, on July 26, 1966 Lord Gardiner, L.C.
made the following statement on behalf of himself
and the Lords of Appeal in Ordinary:
"Their Lordships regard the use of precedent as
an indispensable foundation upon which to
decide what is the law and its application to
individual cases. It provides at least some
degree of certainty upon which individuals can
rely in the conduct of their affairs, as well as a
basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too
rigid adherence to precedent may lead to
injustice in a particular case and also unduly
restrict the proper development of the law.
They propose, therefore, to modify their
present practice and, while treating former
decisions of this House as normally binding, to
depart from a previous decision when it
appears right to do so.
In this connection they will bear in mind the
danger of disturbing retrospectively the basis
on which contracts, settlements of property and
fiscal arrangements have been entered into and
also the especial need for certainty as to the
criminal law."
(Emphasis supplied)
(e) It has been held by the Hon'ble Supreme
Court in the case of State of U.P. Vs. Synthetics
and Chemicals Ltd., reported in (1991) 4 SCC
139, in paragraph no.41, which reads as under :-
"41. Does this principle extend and apply to a
conclusion of law, which was neither raised nor
preceded by any consideration. In other words can
such conclusions be considered as declaration of
law? Here again the English courts and jurists have
carved out an exception to the rule of precedents. It
has been explained as rule of sub-silentio. "A
decision passes sub-silentio, in the technical sense
that has come to be attached to that phrase, when
the particular point of law involved in the decision
is not perceived by the court or present to its
mind." (Salmond on Jurisprudence 12th Edn., p.
153). In Lancaster Motor Company (London) Ltd. v.
Bremith Ltd. the Court did not feel bound by earlier
- 33 -
decision as it was rendered 'without any argument,
without reference to the crucial words of the rule
and without any citation of the authority'. It was
approved by this Court in Municipal Corporation of
Delhi v. Gurnam Kaur. The bench held that,
'precedents sub-silentio and without argument are
of no moment'. The courts thus have taken recourse
to this principle for relieving from injustice
perpetrated by unjust precedents. A decision which
is not express and is not founded on reasons nor it
proceeds on consideration of issue cannot be
deemed to be a law declared to have a binding
effect as is contemplated by Article 141. Uniformity
and consistency are core of judicial discipline. But
that which escapes in the judgment without any
occasion is not ratio decidendi. In B. Shama Rao v.
Union Territory of Pondicherry it was observed, 'it
is trite to say that a decision is binding not because
of its conclusions but in regard to its ratio and the
principles, laid down therein'. Any declaration or
conclusion arrived without application of mind or
preceded without any reason cannot be deemed to
be declaration of law or authority of a general
nature binding as a precedent. Restraint in
dissenting or overruling is for sake of stability and
uniformity but rigidity beyond reasonable limits is
inimical to the growth of law."
(Emphasis supplied)
(f) It has been held by the Hon'ble Supreme
Court in the case of Subhash Chandra Vs. Delhi
Subordinate Services Selection Board,
reported in (2009) 15 SCC 458, in paragraph
no.98, which reads as under :-
"98. It is also well known that a decision rendered
in ignorance of a binding precedent and/or in
ignorance of a constitutional provision, would be
held to have been rendered per incuriam."
(Emphasis supplied)
(g) It has been held by the Hon'ble Supreme
Court in the case of Siddharam Satlingappa
Mhetre Vs. State of Mhaharashtra, reported in
(2011) 1 SCC 694, in paragraph nos.128 to
136, which read as under :-
"128. Now we deem it imperative to examine the
issue of per incuriam raised by the learned
counsel for the parties. In Young v. Bristol
Aeroplane Co. Ltd. the House of Lords observed
that "Incuria" literally means "carelessness". In
practice per incuriam appears to mean per
- 34 -
ignoratium. English courts have developed this
principle in relaxation of the rule of stare decisis.
The "quotable in law" is avoided and ignored if it
is rendered in ignoratium of a statute or other
binding authority. The same has been accepted,
approved and adopted by this Court while
interpreting Article 141 of the Constitution which
embodies the doctrine of precedents as a matter
**
of law .
In Halsbury's Laws of England (4th Edn.) Vol.
26: Judgment and Orders: Judicial Decisions
as Authorities (pp. 297-98, Para 578) per
incuriam has been elucidated as under:
A decision is given per incuriam when the
court has acted in ignorance of a previous
decision of its own or of a court of
coordinate jurisdiction which covered the
case before it, in which case it must
decide which case to follow (Young v.
Bristol Aeroplane Co. Ltd., KB at p. 729 :
All ER at p. 300). In Huddersfield Police
Authority v. Watson, or when it has acted
in ignorance of a House of Lords decision,
in which case it must follow that decision;
or when the decision is given in
ignorance of the terms of a statute or rule
having statutory force.
129. Lord Goddard, C.J. in Huddersfield Police
Authority v. Watson observed that where a case or
statute had not been brought to the court's
attention and the court gave the decision in
ignorance or forgetfulness of the existence of the
case or statute, it would be a decision rendered
per incuriam.
130. This Court in Govt. of A.P. v. B.
Satyanarayana Rao observed as under: (SCC p.
264, para 8)
"8. ... The rule of per incuriam can be applied
where a court omits to consider a binding
precedent of the same court or the superior
court rendered on the same issue or where a
court omits to consider any statute while
deciding that issue."
131. In a Constitution Bench judgment of this
Court in Union of India v. Raghubir Singh, Pathak,
C.J. observed as under: (SCC p. 766, para 9)
"9. The doctrine of binding precedent has the
merit of promoting a certainty and
consistency in judicial decisions, and enables
an organic development of the law, besides
providing assurance to the individual as to
the consequence of transactions forming part
of his daily affairs. And, therefore, the need
for a clear and consistent enunciation of legal
principle in the decisions of a court."
132. In Thota Sesharathamma v. Thota
Manikyamma a two-Judge Bench of this Court
held that the three-Judge Bench decision in Karmi
v. Amru was per incuriam and observed as under:
- 35 -
(Thota case, SCC p. 320, para 10)
"10. ... It is a short judgment without
adverting to any provisions of Section 14(1)
or 14(2) of the Act. The judgment neither
makes any mention of any argument raised in
this regard nor is there any mention of the
earlier decision in Badri Prasad v. Kanso
Devi. The decision in Karmi cannot be
considered as an authority on the ambit and
scope of Sections 14(1) and (2) of the Act."
133. In R. Thiruvirkolam v. Presiding Officer a
two-Judge Bench of this Court observed that the
question is whether it was bound to accept the
decision rendered in Gujarat Steel Tubes Ltd. v.
Mazdoor Sabha which was not in conformity with
the decision of a Constitution Bench in P.H.
Kalyani v. Air France. J.S. Verma, J. speaking for
the Court observed as under: (R. Thiruvirkolam
case, SCC p. 14, para 11)
"11. With great respect, we must say that the
abovequoted observations in Gujarat Steel at
p. 215 are not in line with the decision in
Kalyani which was binding or with D.C. Roy
to which the learned Judge, Krishna Iyer, J.
was a party. It also does not match with the underlying juristic principle discussed in Wade. For these reasons, we are bound to follow the Constitution Bench decision in Kalyani which is the binding authority on the point."
134. In Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.
135. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra has observed that: (SCC p. 682, para
12) "(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength."
136. A three-Judge Bench of this Court in Official Liquidator v. Dayanand again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka v. Umadevi (3) is binding on all courts including this Court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In SCC para 90, the Court observed as under: (Official Liquidator case, SCC p. 57) "90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases
- 36 -
involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."
(Emphasis supplied)
(h) It has been held by the Hon'ble Supreme Court in the case of State of Orissa Vs. Mamata Mohanty, reported in (2011) 3 SCC 436, in paragraph nos.64 & 65, which read as under :-
"64. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus the "quotable in law", is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority.
65. In Mamleshwar Prasad v. Kanhaiya Lal this Court held: (SCC p. 235, para 7) "7. ... where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission."
(Emphasis supplied)
(i) It has been held by the Hon'ble Supreme Court in the case of M. P. Rural Road Development Authority VS. L.G. Chaudhary Engineers & Contractors, reported in (2012) 3 SCC 4958, in paragraph nos.28 to 31, which
- 37 -
read as under :-
"28. The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered "per incuriam". The principles are: (KB p. 729) "... Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam."
29. The decision in Young was subsequently approved by the House of Lords in Young v. Bristol Aeroplane Co. Ltd., AC at p. 169 of the Report. Lord Viscount Simon in the House of Lords expressed His Lordship's agreement with the views expressed by Lord Greene, the Master of Rolls in the Court of Appeal on the principle of per incuriam (see the speech of Lord Viscount Simon in Bristol Aeroplane Co. Ltd. case, AC at p. 169 of the Report).
30. Those principles have been followed by the Constitution Bench of this Court in Bengal Immunity Co. Ltd. v. State of Bihar (see the discussion in SCR at pp. 622 and 623 of the Report).
31. The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. v. Wakeling, QB at p. 406. The principle has been stated as follows:
"... As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong."
(Emphasis supplied)
(j) It has been held by the Hon'ble Supreme Court in the case of Sandeep Kumar Bafna Vs.
- 38 -
State of Maharashtra, reported in (2014) 16 SCC 623, in paragraph no.19, which reads as under :-
"19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.
(Emphasis supplied)
(k) It has been held by the Hon'ble Supreme Court in the case of Satish Kumar Gupta Vs. State of Haryana, reported in (2017) 4 SCC 760, in paragraph no.17, which reads as under :-
"17. We may now refer to an order of this Court dated 15-7-2004 which has been relied upon in the impugned judgment in para 31. There is no consideration of the principle of law and thus, the said order without there being contest on the principle of law could not be treated as a precedent for deciding the legal issue at hand.
(Emphasis supplied)
(l) It has been held by the Hon'ble Supreme Court in the case of C. N. Rudramurthy Vs. K. Barkathulla Khan, reported in (1998) 8 SCC 275, in paragraph no.6, which reads as under :-
"6. In D.C. Bhatia case this Court was concerned with a provision under the Delhi Rent Control Act
- 39 -
and Section 3(c) made it clear that the Act was not applicable to any premises whether residential or non-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In Shobha Surendar case the High Court had proceeded to rely upon Padmanabha Rao case; when the matter was brought to this Court though no specific reference was made to Padmanabha Rao case this Court stated that the law laid down in D.C. Bhatia case would be applicable, it was not open to the High Court to state that it would prefer to follow the decision in Rattan Arya case. Indeed it is a matter of judicial discipline that requires that when this Court states as to what the law on the matter is, the same shall be binding on all the courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If that is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D.C. Bhatia case. The clear pronouncement made by this Court in Shobha Surendar case was that D.C. Bhatia case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao case. In effect, Padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that D.C. Bhatia case was applicable to the provisions of the Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter. Thus we are of the view that the direction issued by the High Court to the parties to work out their remedies under the Rent Control Act is not at all correct."
(Emphasis supplied)
(m) It has been held by the Hon'ble Supreme Court in the case of R. N. Agarwal Vs. R. C. Bansal, reported in (2015) 1 SCC 48, in paragraph nos.28 & 29, which read as under :-
"28. The Special Judge considering all those materials brought on record during investigation and relying upon the decisions of this Court in SWIL Ltd. v. State of Delhi, Nisar v. State of U.P., Kishun Singh v. State of Bihar and Raghubans
- 40 -
Dubey v. State of Bihar, came to the conclusion that the respondents are involved in the commission of offence and consequently summons were issued against them.
29. While passing the impugned order the High Court instead of relying on the decisions of this Court reversed the order passed by the Special Judge by following the decision of the Single Judge of the Delhi High Court in Anirudh Sen case. Prima facie, therefore, the impugned order passed by the High Court quashing issuance of summons by the Special Judge against the respondents is erroneous in law and cannot be sustained. However, at this stage it was not necessary for the Special Judge to issue directions to CBI to get a case registered against the guilty officers who have investigated the case."
(Emphasis supplied)
(n) It has been held by the Hon'ble Supreme Court in the case of Himangni Enterprises Vs. Kamaljeet Singh Ahluwalia, reported in (2017) 10 SCC 706, in paragraph no.25, which reads as under :-
"25. We have gone through the decisions cited by the learned counsel for the appellant in support of her contention. Having gone through the same, we are of the considered opinion that firstly, some decisions are rendered by the High Court; secondly, remaining decisions are distinguishable on facts; and lastly, in the light of two authoritative decisions of this Court, which are directly on the point and continue to hold the field, no reliance can be placed by the learned counsel for the appellant on any decision of the High Court. Indeed, any such decision of the High Court, which has taken view contrary to the view of this Court, the same stands overruled. Such is the case here."
(Emphasis supplied) XXV. It further appears from the decisions upon which reliance is placed by the counsel for the petitioners especially the one which is reported in 2008 (2) JLJR 543, a concession was given by the Advocate General, and hence, the cut-off date was altered, as stated in paragraph no.21 of the aforesaid decision. Such type of
- 41 -
precedence cannot be a binding precedent. XXVI. In view of the aforesaid decisions, if the decision is given without there being any discussion of the earlier binding judgments then the judgment is known as per incuriam judgment. Judgment depends upon the arguments. Sometimes, there is a good assistance by the advocates and sometimes it is otherwise. Judges are not supposed to know, what is the fact and what is the law. Judges have to choose best matching of the two. It is the duty of the counsel, who argue, to point out the correct facts and laws. If the earlier binding precedents have not been pointed out before the Division Bench and out of ignorance, a judgment has been delivered which runs counter to, the binding precedents as per Article 141 of the Constitution of India. Such judgments are known as per incuriam and ratio propounded by such type of precedents judgments are not binding. In fact per incuriam judgments are indirectly over ruled judgments. XXVII. As stated here-in-above, consistent views of the Hon'ble Supreme Court right from 1975 onwards that unless cut-off date is arbitrary, whimsical, capricious and so wide off the mark as to make it wholly unreasonable, the cut-off date cannot be altered by the Courts while exercising powers under Article 226 of the Constitution of India or while exercising powers under judicial review. The Courts cannot be more charitable than law. Charity beyond law is a cruelty to others. "Accommodative approach" cannot be adopted by this Court, when law is
- 42 -
explicitly clear.
Summary of principles :-
XXVIII. On the basis of the aforesaid decisions rendered by the Hon'ble Supreme Court, the law can be summarized as under :-
(i) The choice of date as a basis for classification fixed by the legislature or its delegate 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,
(ii) The cut-off date, to attain the minimum or maximum age, must be specific and determinate on a particular date and it cannot be allowed to depend upon any fluctuating or uncertain date, because it may lead to consequences, anomalies and uncertainties.
(iii) Mere errors of government in fixing of cut-
off date, which may be unjust and oppressive are not subject to judicial review, it is only its palpable arbitrary exercise which can be declared void.
(iv) It is the discretion of the rule-making authority or employer, to fix a cut-off date for determining the maximum or minimum age prescribed for a post and it cannot be, per se arbitrary, unless the cut-off date, is as wide off the mark, as to make it wholly unreasonable.
- 43 -
(v) A cut-off date cannot be fixed with any mathematical precision. 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 fall on the wrong side of the cut-off date and the persons falling on the wrong side cannot challenge the same, unless, it is as capricious or whimsical as to be wholly unreasonable.
(vi) There cannot be any "wholesale relaxation" on the ground that the advertisement is delayed unless, there is an allegation of any mala fides in connection with delay in issuing an advertisement. This wholesale relaxation would make total uncertainty in determining the maximum age of a candidate and it might be unfair for large number of similarly situated candidates who may not apply, thinking that they are age-barred.
(vii) A cut-off date can be provided in terms of the provisions of statute or executive order and if any hardship is caused to some persons or a section of society that may by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires to Article 14 of the constitution.
(viii) The fixing of cut-off dates is within the domain of the executive authority. There may be various considerations in the mind of the executive authorities due to which a particular
- 44 -
cut-off date is fixed. These considerations can be financial, administrative or other considerations. Therefore 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. XXIX. The aforesaid view has been taken by the Division Bench of this Court in L.P.A. No.429 of 2014 with L.P.A. No.3 of 2015 with L.P.A. No.4 of 2015 with L.P.A. No.9 of 2015. Judgment has been delivered by this very Division Bench vide judgment and order dated 03.07.2017, Special Leave Petition against which, has been dismissed by the Hon'ble Supreme Court vide order dated 25.01.2018 in Special Leave Petition Diary No.38114 of 2017.
6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we are not inclined to change the cut-off date from 31.01.2016 to any other date and much less to 31.01.2011 or 31.01.2013, as prayed in these writ petitions.
7. Hence, there is no substance in these writ petitions and the same are, hereby, dismissed.
(D. N. Patel, A.C.J) (Amitav K. Gupta, J) Chandan - Biswas/-