Madras High Court
S.Srinivasan vs The State Of Tamil Nadu on 20 April, 2022
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.15045 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.06.2022
Delivered on: 08.07.2022
CORAM
THE HONOURABLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.15045 of 2022
and WMP.No.14269 of 2022
1.S.Srinivasan
2.T.Yogaraj ...Petitioners
-Vs-
1.The State of Tamil Nadu,
Represented by its Additional Chief Secretary,
Home Department, Secretariat,
Chennai-600 009.
2.The Chairman,
Tamil Nadu Uniformed Services Recruitment Board,
Old Commissioner of Police Office Campus,
Egmore, Chennai-8.
3.The Member Secretary,
Tamil Nadu Uniformed Services Recruitment Board,
Old Commissioner of Police Office Campus,
Egmore, Chennai-8.
4.The Director General of Police,
O/o. The Director General of Police,
Tamil Nadu, Chennai-600 004. ...Respondents
1
https://www.mhc.tn.gov.in/judis
W.P.No.15045 of 2022
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus calling for the
records relating to the impugned order passed by the 1st respondent, vide
proceedings Letter No.20188/Police-III/2022-4 dated 20.04.2022 and quash
the same as illegal and consequently to direct the 2nd respondent to extend
the period of the participation in sports event by 2 years i.e., from
08.03.2015 to 07.03.2022 as was granted in respect of age criteria in the
very same notification taking into consideration of the Covid-19 pandemic
within the period that may be stipulated by this Court.
For Petitioner : Mr.H.Mohammed Imran
for M/s.Ajmal Associates
For Respondents : Mr.P.Kumaresan,
Additional Advocate General
assisted by
Mrs.D.Sowmi Dattan for R2 & R3
Mr.P.Ganesan,
Government Advocate for R1 & R4
ORDER
The petitioners, challenging the impugned order of the first respondent dated 20.04.2022, in and by which the request made by the petitioners for enhancing the upper age limit by 2 years on account of Covid- 19 pandemic, for recruitment to the post of Sub Inspector of Police, 2022 came to be rejected, have filed the present writ petition. 2 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022
2. The case of the petitioners, briefly narrated, are as follows:
2.1. The first petitioner is qualified with B.Com., M.B.A., and M.Phil.
While he was studying M.Phil., he was issued with meritorious sportsman certificate for employment. The second petitioner was also issued with Form III Sports Certificate on 06.04.2016 and 27.03.2017 respectively.
2.2. The third respondent, issued a notification in Advertisement No.1/2022 dated 08.03.2022, inviting applications from eligible candidates for appointment to the post of Sub-Inspector of Police [Taluk, Armed Reserve (Men & Women / Transgender) & Tamil Nadu Special Police (Men)]-2022. The petitioners applied for the said post by submitting online application and on perusal of the information brochure, they came to know that for applying under 10% sports quota, the candidate is required to produce the certificates for the approved sports events held within 5 years preceding the notification i.e., from 08.03.2017 to 07.03.2022 and prior to that are not eligible.
2.3. According to the petitioners, due to Covid-19 pandemic, no sports 3 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 event was conducted and no recruitment was announced by the Government and therefore, the period of participation prescribed as 5 years has to be extended by 2 years i.e., from 08.03.2015 to 07.03.2022. As there was no sports events conducted by the State in the last 2 years, it is not possible for the candidates to submit the certificates for the last 2 years in the event, claiming sports quota. Therefore, the said Clause in the notification defeats the right of eligible candidates to be selected for public employment.
2.4. Aggrieved over the said Clause in the notification, the petitioners earlier approached this Court by filing W.P.No.7038 of 2022 and this Court, vide order dated 28.03.2022, has disposed of the said writ petition by directing the respondents 1 and 2 to consider the petitioners representation by extending the period of participation in sports event by two years i.e., from 08.03.2015 to 07.03.2022. While that being so, vide proceedings dated 20.04.2022, the first respondent has rejected the petitioners request on the ground that the existing rules cannot be changed for the ongoing recruitment process as the applications have been closed. Challenging the same, the petitioners have filed the present writ petition. 4 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022
3. The third respondent has filed a counter affidavit stating that in pursuant to the directions issued by this Court in W.P.Nos.7038 of 2022, the representations of the petitioner was forwarded to Home Department, Government of Tamil Nadu for compliance and the Home Department has sought remarks from TNUSRB and in accordance to the existing norms, the Home Department had sent a memorandum dated 20.04.2022 to the petitioners stating that their request cannot be acceded to at this stage. It is further stated in the counter affidavit that non-consideration of the candidates is in accordance with G.O.(Ms.)No.270, Home (Police.3) Department dated 01.04.2009 with respect to recruitment of candidates under Sports Quota and TNUSRB issued notification to the post of Sub- Inspectors of Police, 2022 on 08.03.2022 in conformity with the said Government Order and therefore, it is not feasible to change the existing rules for the ongoing recruitment process for Sub-Inspectors of Police, 2022.
4. Heard the learned counsel for the parties and also perused the materials on record.
5 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022
5. The point for consideration is whether the age criteria of participation in sports event for 5 years preceding to the notification i.e., for the period between 08.03.2017 to 07.03.2022, can be relaxed ?
6. Clause 10 of the impugned recruitment Notification No.1/2022 dated 08.03.2022 issued by the third respondent, for appointment to the post of Sun Inspectors of Police -2022, reads as under:
“10. Eligibility for applying under 10% Sports Quota:-
i. Candidates applying under 10% sports quota should fulfill all the norms prescribed for open candidates. In addition, the candidate is required to produce Form-I or Form-II or Form- III for the approved 16 games/sports for an event held within 5 years preceding the date of notification i.e., from 08.03.2017 to 07.03.2022.”
7. The primordial contention of the petitioners is that on account of full lock down owing to Covid-19 pandemic in the month of March, 2020, neither any sport event was conducted nor any recruitment was announced 6 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 by the Government and therefore, having regard to age criteria, the participation in respect of sport event also has to be extended by another 2 years period i.e., from the period 08.03.2015 till 07.03.2022, so as to enable deserving and eligible aspirants like the petitioners to participate in the selection process.
8. It is to be pointed out that challenging the very same impugned Clause of the recruitment notification, the petitioners had earlier filed W.P.No.7038 of 2022 and this Court, vide order dated 28.03.2022, has observed that this Court cannot give direction to the authorities concerned to extend the period from 5 years to 7 years and ultimately directed the first respondent to consider the petitioners' representation dated 12.03.2022 and to pass appropriate orders. In compliance of the order passed by this Court dated 28.03.2022 made in W.P.No.7083 of 2022, the representation submitted by the petitioners have been forwarded to the Home Department, Government of Tamil Nadu, which in-turn, after getting opinion/remarks from TNUSRB and taking into consideration G.O.(Ms.)No.270, Home (Police.3) Department dated 01.04.2009, had passed the impugned order 7 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 dated 20.04.2022 rejecting the petitioners request.
9. The law is well settled as regards the scope of judicial review in the matter of administrative orders of Executive authorities, especially with regard to the eligibility criteria and norms fixed for recruitment. The Hon'ble Supreme Court in the case of Government of Andhra Pradesh v. N.Subbarayadu [(2008) 14 SCC 702] has held as follows:
“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.”
10. It has been repeatedly held by the Hon'ble Supreme Court that fixing a cut-off date for determining the maximum or minimum age is the discretion of the employer and judicial review is not permissible unless the fixation of cut-off date is so capricious or whimsical. The Hon'ble Supreme Court in the case of Dr. Ami Lal Bhat v. State of Rajasthan and others [(1997) 6 SCC 614] has held as follows:
8
https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 "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 Worksand 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 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 9 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 arise if such an age is linked to the process of selection which may take 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.
6.In the case of Union of India and Anr. v. Sudhir Kumar Jaiswal (1994 4 SCC 212) the date for determining the age of eligibility was fixed at 1st of August of the year in which the examination was to be held. At the time when this cut off date was fixed, here used to be only one examination for recruitment. Later on, a preliminary examination was also introduced. Yet the cut off date was not modified. The Tribunal held that after the introduction of the preliminary examination the cut off date had become arbitrary. Negativing this view of the Tribunal and allowing the appeal. This Court Cited with approval the decision of this Court in Parmeshwar Match Works case (supra) and said that fixing of the cut off date can be considered as arbitrary only if it can be looked upon as so capricious or whimsical as to invite judicial interference. Unless the date is grossly unreasonable, the court wold be reluctant to strike down such a cut off date.?
11. In the case of State of Rajasthan v. Hitendra Kumar Bhatt [AIR 1998 SC 91] the Hon'ble Supreme Court has held as follows:
“A cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others.” 10 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 As pointed out by the Hon'ble Supreme Court, it is a policy decision of the Government and the Executive to fix the cut-off date and other eligibility criteria, having regard to the various considerations and the Court is expected to observe judicial restraint and cannot interfere casually merely because some inconvenience is caused to individuals.
12. It is trite principle of service jurisprudence that once process of recruitment commences on issuance of advertisement, no changes in the essential qualification / disqualification can be made during subsistence of the said recruitment. The said principle of service jurisprudence is that the rules of game cannot be changed, once it has begun. The aforesaid time tested principle is based on sound reasoning that in case such change in the rules of recruitment is permitted, then large number of persons who had not applied for being not eligible as per the recruitment and who would become eligible based on the relaxation made, would be deprived of their right to be considered for public employment which would amount to violation of their fundamental right under Article 16 of Constitution of India. 11 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022
13. The Hon'ble Apex Court in the decision in Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve [(2001) 10 SCC 51], wherein it has been held as under:
“5....It has been repeatedly held by this Court that the rules of the game meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent if pronounced upon the invalidity of the Circular Orders dated 24.06.1996, does not merit acceptance in our hand and the same are set aside.”
14. In yet another decision in Zonal Manager, Bank of India, Zonal Office, Kochi v. Aarya K.Babu [(2019) 8 SCC 587], the Hon'ble Apex Court has held as under:
“12. Though we have taken note of the said contention we are unable to accept the same. We are of such opinion in view of the well-settled position that it is not for the Court to read into or assume and thereby include certain qualifications which not been included in the Notification by the employer. Further the rules as referred to by the learned counsel for the respondents is pointed out to be a rule for promotion of officers. That apart, even if the qualification prescribed in the advertisement was contrary to the qualification provided under the recruitment rules, it would have been open for the candidate concerned to challenge the Notification 12 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 alleging denial of opportunity. On the other hand, having taken note of the specific qualification prescribed in the notification, it would not be open for a candidate to assume that the qualification possessed by such candidate is equivalent and thereby seek consideration for appointment nor will it even be open for the employer to change the requirements midstream during the ongoing selection process or accept any qualification other than the one notified since it would amount to denial of opportunity to those who possess the qualification but had not applied as it was not notified.”
15. It is pointed out by the third respondent in the counter affidavit that the outer time limit for submission of application for the said post closed on 17.04.2022 and eligible candidates had been issued with call letters for written examination to be conducted on 25.06.2022 and 26.06.2022.
16. In the light of the decisions cited supra, this Court is not inclined to accept the case of the petitioners, as it is the within the exclusive domain of the Government and the Executive authorities to fix the cut-off date, eligibility criteria and other norms for recruitment and further, the change of eligibility qualification in the midstream during the ongoing selection process or accept the qualification other than the one notified would amount to denial of opportunity to those who possess the qualification but had not 13 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 applied as it was not notified. In the light of the well settled legal position, it is not feasible to change the existing rules for the ongoing recruitment process for Sub-Inspectors of Police, 2022 and therefore, the prayer sought for by the petitioner is liable to be rejected.
17. In the light of the reasons assigned above, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
08.07.2022
Index : Yes / No
Internet :Yes/No
Jvm
To
1.The Additional Chief Secretary,
The State of Tamil Nadu,
Home Department, Secretariat, Chennai-600 009.
2.The Chairman, Tamil Nadu Uniformed Services Recruitment Board, Old Commissioner of Police Office Campus, Egmore, Chennai-8.
3.The Member Secretary, 14 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 Tamil Nadu Uniformed Services Recruitment Board, Old Commissioner of Police Office Campus, Egmore, Chennai-8.
4.The Director General of Police, O/o. The Director General of Police, Tamil Nadu, Chennai-600 004.
D.KRISHNAKUMAR, J.
Jvm 15 https://www.mhc.tn.gov.in/judis W.P.No.15045 of 2022 Order in W.P.No.15045 of 2022 08.07.2022 16 https://www.mhc.tn.gov.in/judis