Jharkhand High Court
Maqbul Ansari vs State Of Jharkhand & Ors on 17 May, 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2139 of 2012
Maqbul Ansari .... Petitioner
Versus
The State of Jharkhand & ors. .... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
For the Petitioner : Mr. Satish Prasad, Advocate
For the RespondentState : Mr. Mohan Kumar Dubey, J.C. to A.G.
th
02/Dated: 17 May, 2012
1.Present writ petition has been preferred mainly for the reason that the petitioner has applied for the post of Constable in pursuance of the public advertisement published in local newspaper on 13th January, 2004. The cutoff date for calculation of minimum and maximum age as per Clause 4 of the public advertisement is 1st January, 2004 and minimum age required is 19 years and maximum age in the category, for which, the petitioner has applied is 37 years. The petitioner belongs to Most Backward Class Category. In this category, maximum age limit prescribed is 37 years as on 1st January, 2004. The candidature of the present petitioner has been rejected on the ground that the petitioner was over age candidate as on 1st January, 2004.
2. Learned counsel for the petitioner submitted that the respondent Government has power of age relaxation and, therefore, the petitioner's age, which is 37 years 2 months and 28 days as on 1st January, 2004 should have been accepted by relaxing the age limit for the candidature on the post of Constable. The respondents ought to have relaxed 2 months and 28 days period for the petitioner. Learned counsel for the petitioner is relying upon Annexures 6 and 9. Annexure6 is a judgment and Annexure9 is a circular. Learned counsel for the petitioner has read paragraph 3 of the judgment delivered by this Court in L.P. A. No. 660 of 2005 dated 4th May, 2006, which is at Annexure3 to the memo of the petition.
3. Paragraph 3 of the aforesaid judgment reads as under:
"3. It is not in dispute that the appellant was under age as on 1st January, 2004. By that time, he disclosed his date of birth as on 1st January, 1985 and thereby, there was no misrepresentation on his part. There is a provision to relax any condition of service, commonly known as 'Relaxation Rule', framed under proviso to Article 309 of the Constitution of India by the then State of Bihar vide Resolution no. 111/R2010/55A11505 dated 28th November, 1956. The competent authority has been empowered to relax any condition of service in regard to any individual or a class of persons in case of hardship. Such power being vested with the competent authority, it is always open to any candidate to apply, though he may not fulfill one or other condition of service, such as, minimum age prescribed for appointment and can 2 expect that favourable decision is taken. If no such application is filed, there will be no occasion for the competent authority to exercise of power of relaxation as conferred by Rule dated 28th November, 1956. In such a situation, it was always open to any candidate to apply with a hope for relaxing the specific criteria and if no misrepresentation is made, it cannot be held to be misleading the authority. If a person is not eligible, the appointment can be held to be irregular or illegal or ab initio, void but that will not amount to misconduct or dereliction of duty or insubordination and thereby, no departmental proceeding for major punishment is attracted. The service of a person can be terminated on the ground of irregular or illegal appointment or appointment ab initio void but such person cannot be dismissed from service as a major punishment.
An illegal appointment cannot be legalized. Similarly, an appointment ab initio void cannot be recognized. But if any appointment is irregular, it can be regularized or may regularize automatically by efflux of time. If all procedures for appointment are made but if underage person is appointed, on attaining prescribed age, the appointment automatically stands regularized and, thereafter, it cannot be held to be illegal. Similar case fell for consideration before a Bench of this Court in the case of 'Cosmas Bhengra Vrs. State of Jharkhand & ors.' reported in 2005 (3) JCR 271 (Jhr.). That was also a case where a person, who was under age, i.e. three days less than the prescribed age, was appointed. In his case also, the State of Jharkhand dismissed him on the ground of misconduct, he having been appointed, below the prescribed age. The Court held that misconduct cannot be alleged without enquiry and further held that in case, the said petitioner was underage, the relaxation could have been granted under the Relaxation Rules.
4. Learned counsel for the petitioner further submitted that there are approximately 12,000 vacancies for the post of Constable. These vacancies were never arisen as on 1st January, 2004, but they are accumulated and are of the previous year and, therefore also, the upper age limit should have been relaxed. The petitioner is working as a Home Guard since last several year and, therefore also, the upper age limit should have been relaxed.
5. Learned counsel for the respondentState submitted that the State Government has given a public advertisement in a local newspaper on 13 th January, 2004 inviting applications for the post of Constable. The age limit has been prescribed in Clause 4 of the public advertisement. The petitioner belongs to Most Backward Class Category candidate and for him the maximum age limit is 37 years as on 1st January, 2004. The petitioner is 37 years 2 months and 28 days of age as on 1st January, 2004 because the date of birth of the petitioner is 4th October, 1966. Learned counsel for the respondentState vehemently submitted that the cutoff date may not be changed by this Court, otherwise, there will not be any certainty about the minimum age nor will have any certainty about the maximum age limit. The age of retirement is 60 years and there may be several candidates, who are ready to apply, even at the age of 58 3 years and even at the age of 59 ½ years. What must be the minimum and what must be the maximum age, this is the policy decision of the State. The High Court will be slow in exercising power under Article 226 of the Constitution of India in any policy decision taken by the State. In the facts of the present case, it is not warranted to relax the upper age limit for the present petitioner. There is no special circumstance in favour of the present petitioner for relaxation of age. Learned counsel for the respondentState also submitted that the judgment delivered by the Division Bench of this Court in the L.P.A., as stated by learned counsel for the petitioner which is annexed at Annexure6 is altogether different context. In the facts of that case, there was a misconduct committed by the petitioner and wrongly the age was represented. Ultimately, it was found out by the State that when he was appointed below minimum age, disciplinary actions were taken. In that context, the L.P.A. Bench has delivered the decision. The facts of the present case is altogether different. It is further submitted by learned counsel for the respondentState that assuming without admitting that there is power vested with the Government to relax the age limit, then also looking to paragraph 3 of the aforesaid judgment, such type of relaxation will be operated only in the case of hardship. There is no hardship with the petitioner for relaxation of 2 months and 28 days. If somebody is in hospital and he has crossed the maximum age limit, that must be a hardship. There must be a cogent and convincing reason for condonation or for relaxing the age. It is further submitted by learned counsel for the respondentState that there is no special favourable circumstance in favour of the petitioner, which warrants the age relaxation by 2 months and 28 days, otherwise, there must be several candidates, who were never applied for the post of Constable because of crossing the age. The exception cannot be operated as a rule. Learned counsel for the respondentState is relying upon several decisions of the Hon'ble Supreme Court and also the decision rendered by this Court dated 14th February, 2012 passed in W.P. (S) No. 4709 of 2011 with batch cases and submitted that the cutoff date, which is fixed as a policy decision by the State as 1st January, 2004 may not be altered by this Court. There are bound to be few candidates, who will found within wrong side of the cutoff date and few candidates will become eligible for preferring applications. Merely because some candidates have crossed the upper age limit is no ground for this Court to alter the policy decision of the State. Whenever any public advertisement is given by the State for any of the posts, there are bound to be few candidates, who are not eligible because of crossing the maximum age limit, that does not mean that the age in 4 all those cases should be relaxed. What maximum age limit the candidate should be given employment, it is left at the discretion of the employer. Only employer should decide the maximum age limit and the State has taken policy decision not to give employment after the prescribed maximum age limit and, therefore, this decision may not be interfered with by this Court, while exercising power under Article 226 of the Constitution of India.
6. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the following facts and reasons:
(i) Public advertisement has been issued by the respondentState on 13th January, 2004 inviting applications for the post of Constable. As per Clause 4, minimum age limit prescribed is 19 years and for General category candidates, the maximum age limit is prescribed as 35 years and there is already relaxation of 2 years for the present petitioner, who has applied under Most Backward Class Category candidate. For this category, the upper age limit is 37 years. For Female candidates, the upper age limit is 38 years. For Scheduled Castes and Scheduled Tribes candidates, still there is relaxation and 40 years is a maximum age limit. The cutoff date of calculation of maximum and minimum age limit is 1st January, 2004. The advertisement was published in January, 2004.
(ii) The date of birth of the petitioner, as submitted by learned counsel for the petitioner is 4th October, 1966, therefore, the age of the present petitioner as on 1st January, 2004 comes to 37 years 2 months and 28 days. Thus, the present petitioner is above the maximum age limit. The petitioner is above for 2 months and 28 days of the maximum age limit prescribed by the State Government, therefore, he was not eligible to apply for the post of Constable.
(iii) Learned counsel for the petitioner submitted that there are as many as approximately 12,000 vacancies for the post of Constable, which have been advertised. These vacancies were never arisen on 1st January, 2004.
It is a backlog vacancy of several years, therefore, the age limit should have been relaxed. This contention is not accepted by this Court mainly for the reason that it is not necessary that the vacancies are backlog, therefore, there must not be any maximum age limit. This argument has no relevance, at all, with the backlog vacancy. The only fact is to be kept in mind is that, as on cutoff date i.e. on 1st January, 2004 whether the petitioner has attained the age of 37 years or not, otherwise, if relaxation 5 is granted without any reason then even a candidate having 50 years age will also come for relaxation of upper age limit. There may be a candidate, who is ready for apply for the post even at the age of 59 years and there may be a candidate who is ready to apply even at the age of 59 years and 6 months. 60 years is the age of superannuation. If this is allowed by the Court by the way of unguided sympathy, it will lead to fluctuating cutoff date or uncertain cutoff date and there will be uncertainty about the maximum age limit also. This Court is not sitting in appeal against the policy decision taken by the respondentGovernment. Only the employer should decide what is the maximum age limit. In the facts of the present case for General category candidates, maximum age limit is 35 years, for Scheduled Castes and Scheduled Tribes category candidates, there is already a relaxation and the maximum age limit is 40 years. Similarly for Female candidates, there is already a relaxation and the maximum age limit is 38 years and for Most Backward Class Category candidates, there is already a relaxation and the maximum age limit is 37 years. The petitioner belongs to the Most Backward Class Category candidate.
(iv) Maximum age limit and cutoff date is being fixed, keeping in mind several aspects of the matter. The Court must be slow in exercising power of judicial review for change of cutoff date, unless it is capricious or whimsical. In the facts of the present case, it cannot be said that cutoff date, which is fixed by the Government as 1st January, 2004 is capricious or whimsical.
(v) Fixing the cutoff date for determining the maximum or minimum age is the discretion of the Rule Making Authority. There can not be any cutoff date, which can be fixed with so much mathematical accuracy and with so much statistical nicety, which can avoid hardship in all conceivable cases. Once the cutoff date is fixed, some candidates are bound to fall on the wrong side of the cutoff date. That cannot make the cutoff date, per se, arbitrary, unless the cutoff date is so "wide of the mark, as to make it wholly unreasonable".
(vi) There cannot be any lump sum or general or wholesale relaxation of age, merely because the advertisement has been published at a much belated stage nor can there be wholesale relaxation, because the vacancies occurred in the earlier years, specially when there is no allegation of malafide in connection with delay in issuing the advertisement.
(vii) It has been held by this Court in paragraph 6(x) of the decision 6 dated 14th February, 2012 passed in W.P. (S) No. 4709 of 2012 with other batch cases, which reads as under:
"6 (x) Grant of lump sum, general or wholesale relaxation to all the petitioners, on the ground that since long the examination for the posts, in question, has not been held by the respondents, would tantamount to :
(a) highly uncertainty about the maximum age limit, because there may be candidates, who are of 50 years, 55 years or 59½ years. All cannot be allowed by lump sum age relaxation to appear in the examination. 60 years is the age of superannuation for the post of Teachers in Higher Secondary Schools. If the petitioners' contention is accepted that instead of 1st January, 2011, the cutoff date should be 15th November, 2000, then perhaps for some categories, the maximum age limit will be 60 years; for example, for "Handicapped Scheduled Tribe candidates", the maximum age limit will be 60 years. Therefore, such type of absurd proposition cannot be accepted by this Court that cutoff date may be fixed by this Court as 15th November, 2000 (the date on which the State of Jharkhand is separated from the erstwhile State of Bihar) instead of 1st January, 2011.
● One more argument has been canvassed that few candidates are overaged by few months and, therefore, the age relaxation may be given in their favour.
This contention also is not accepted by this Court, mainly for the reason that if this contention is accepted, it will lead to arbitrariness and uncertainty.
(b) Such type of lump sum, general or wholesale relaxation of age will lead to unfairness to those candidates, who have never applied for the posts, in question, though they are similarly situated to the petitioners ( i.e. overaged candidates), keeping in mind the maximum age limit, prescribed in the advertisement.
Thus, uncertainty in determining the maximum age and unfairness to a large number of candidates, who have not applied, thinking that they are overaged or thinking that they are agebarred, permits not this Court to alter the cutoff date from 1 s t January, 2011 to 15 th November, 2000 or for any jig jag cutoff date i.e. separate cutoff date for every individual petitioner. Such type of "accommodative approach" cannot be adopted by the Court."
(viii) It has been held by the Hon'ble Supreme Court in the case of A.P. Public Service Commission v. B. Sarat Chandra, as reported in (1990) 2 SCC 669, at paragraph nos. 6, 7 and 8 as under:
"6. There is no dispute that the eligibility of a candidate as to age for appointment as Deputy Superintendent of Police should be determined according to Rule 5 of the A.P. Police Services Rules. It is, therefore, necessary to look first at that Rule. Rule 5 so far as is relevant provides:
"5. Qualifications.-- (A) No person shall be eligible for appointment as a Deputy Superintendent of Police, Category 2 by direct recruitment unless he --
(i) has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the 7 selection is made.
* * *"
7. The rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police. Minimum age is 21 years. The candidate must have completed 21 years on the first day of July of the year in which the selection is made. He should not have also completed 26 years as on that day. The Tribunal while construing this rule has observed:
"According to the procedure the process of selection begins with the issue of the advertisement and culminates in forwarding the list to the appointing authority. The essence of the process lies in the preparation of the list. A selection can be said to have been done only when the list is prepared. In this view the eligibility of the candidates as to age has to be determined at this stage."
If the word 'selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the rule making authority.
8. The appeal therefore, is allowed setting aside the order of the Tribunal."
(Emphasis supplied) In the aforesaid decision, the cutoff date was 1st July, 1983, because the advertisement was published in August, 1983. This cutoff date was under challenge, because Rule 5 of the Andhra Pradesh Police Service Rules states that maximum age limit is 26 years as on 1st July of the year in which the selection is made. Selection has different stages and, therefore, the Hon'ble Supreme Court has held that there cannot be any fluctuating cutoff date or uncertain cutoff date (due to different stages of selection process) and, therefore, whatever was fixed by Andhra Pradesh 8 Public Service Commission as cutoff date i.e. 1st July, 1983 was held as a valid one.
In the facts of the present case also, petitioner has raised the contention that he is agebarred by few months only and as the examination for the posts, in question, was not conducted since last few years, though he is overaged, he may be allowed to appear in the examination, by giving variable age relaxation.
This contention is not accepted by this Court, because it will lead to fluctuating or uncertain cutoff date and there will be uncertainty about the maximum age limit also.
(ix) It has been held by the Hon'ble Supreme Court in the case of Union of India v. Parameswaran Match Works, as reported in (1975) 1 SCC 305, at paragraph no.10 as under:
"10. The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967 as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967 that its total clearance for the financial year 196768 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions (see Hatisingh Mfg. Co. Ltd. v. Union of India, Dr Mohammad Saheb Mahboob Medico v. Deputy CustodianGeneral, Bhikuse Yamasa Kshatriya (P) Ltd. v. Union of India and Daruka & Co. v. Union of India. The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide off the reasonable mark See Louisville Gas Co. v. Alabama Power Co. per Justice Holmes."
(Emphasis supplied) Thus in view of aforesaid decision, the classification, created by the cutoff date with those Constables, who are overaged, because of the cut st off date i.e. 1 January, 2004, and those, who are not overaged, cannot be said to be arbitrary classification.
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(x) It has been held by the Hon'ble Supreme Court in the case of Union of India v. Sudhir Kumar Jaiswal, as reported in (1994) 4 SCC 212, in paragraph nos. 7, 8 and 11, as under:
"7. In this context, it would also be useful to state that when a court is called upon to decide such a matter, mere errors are not subject to correction in exercise of power of judicial review; it is only its palpable arbitrary exercise which can be declared to be void, as stated in Metropolis Theater Co. v. City of Chicago in which Justice McKenna observed as follows:
"It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void ...."
The aforesaid was noted by this Court in Sushma Sharma v. State of Rajasthan in which case also reasonability of fixation of a date for a particular purpose had come up for examination.
8. Having known the legal parameters within which we have to function, let it be seen whether fixation of 1st August as cutoff date for determining the eligibility of applicants qua their age can be held to be arbitrary despite preliminary examination being conducted before that date. As to why the cutoff date has not been changed despite the decision to hold preliminary examination, has been explained in paragraph 3 of the special leave petition. The sum and substance of the explanation is that preliminary examination is only a screening test and marks obtained in this examination do not count for determining the order of merit, for which purpose the marks obtained in the main examination, which is still being held after 1st August, alone are material. In view of this, it cannot be held that continuation of treating 1st August as the cutoff date, despite the Union Public Service Commission having introduced the method of preliminary examination which is held before 1st August, can be said to be "very wide off any reasonable mark" or so capricious or whimsical as to permit judicial interference.
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11. For the aforesaid reasons, equity does not demand any favour to be shown to the respondent. The result is that appeal is allowed with costs by setting aside the impugned order of the Tribunal. Cost assessed as Rs 10,000. The respondent would not be treated or deemed to have passed the examination in question and whatever benefit of the same was given to him pursuant to Tribunal's directions shall stand cancelled."
(Emphasis supplied) Thus, in view of the aforesaid decision also, the cutoff date fixed as 1st August was held as a valid one. Such type of cutoff date may appear to be unjust or oppressive, yet it will be free from judicial interference. The problems of government are practical ones and may be justified.
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(xi) It has been held by Hon'ble Supreme Court in the case of Dr. (Mrs.) Sushma Sharma v. State of Rajasthan & ors., as reported in A.I.R. 1985 SC 1367, in paragraph no.29, as under:
"29. The object of this legislation was to provide for absorption of temporary lecturers of long standing. So therefore experience and continuous employment were necessary ingredients. The Hindi version of the Ordinance used the expression "ke prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning "and are continuing" to work as such at the time of the commencement of the Ordinance. Keeping the background of the purpose of the Act in view that would be the proper construction and if that is the proper construction which is in consonance with the English version of the Ordinance and the Act as well as with the object of the Act then in our opinion the Act and the Ordinance should be construed to mean that only those would be eligible for screening who were appointed prior to June 25, 1975 and were continuing at the time of the commencement of the Ordinance i.e. June 12, 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 June 25, 1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. June 12, 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 June 25, 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 an irrational 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 June 25, 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 June 26, 1975 i.e. after the date fixed i.e. June 25, 1975 for three years would be ineligible and as such that will be discrimination against long experience, cannot be accepted. Such a construction would be an unreasonable construction unwarranted by the language used in the provisions concerned. It is wellsettled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a particular job or a particular employment is not subject to judicial review. We need not refer to a large number of decisions on this point."
(Emphasis supplied) 11 Thus, in this case also, for grant of a benefit of regularization, cut off date was fixed as 25th June, 1975 that those, who were appointed prior to the aforesaid date, will be eligible for scrutiny for regularization, cannot be said to be arbitrary choice of date.
(xii) It has been held by the Hon'ble Supreme Court in the case of Dr. Ami Lal Bhat v. State of Rajasthan & ors., as reported in (1997) 6 SCC 614, in paragraph nos. 5, 7, 11 and 17, as under:
"5. This contention, in our view, is not sustainable. In the first place the fixing of a cutoff date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cutoff date for determining the maximum or minimum age required for a post, is in the discretion of the rulemaking authority or the employer as the case may be. One must accept that such a cutoff date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cutoff date is fixed there will be some persons who fall on the right side of the cutoff date and some persons who will fall on the wrong side of the cutoff date. That cannot make the cutoff date, per se, arbitrary unless the cutoff date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. Parameswaran Match Works1 and has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B. Sarat Chandra the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cutoff date was challenged. This Court considered the various steps required in the process of selection and said, "when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications".
This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cutoff date should be with reference to a fixed date. Therefore, fixing an independent cutoff date, far from being arbitrary, makes for certainty in determining the maximum age.
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7. In the present case, the cutoff date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All Service Rules are uniform on this point. Looking to the various dates on which different 12 departments and different heads of administration may issue their advertisements for recruitment, a uniform cutoff date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for certainty. Such a uniform date prescribed under all Service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as grossly unreasonable or arbitrary. The timegap between the advertisement and the cutoff date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cutoff date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cutoff date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cutoff date. But there is no basis for urging that this is the only reasonable cutoff date. Even such a date is liable to question in given circumstances. In the first place, making a cutoff date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, making it dependent on the date when each department issues an advertisement, and the date which each department concerned fixes as the last date for receiving applications. A person who may fall on the wrong side of such a cutoff date may well contend that the cutoff date is unfair, since the advertisement could have been issued earlier; or in the alternative that the cutoff date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cutoff date fixed and the manner in which it is fixed. That is why this Court has said in the case of Parameswaran Match Works and later cases that the cutoff date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cutoff date can be the last date for receiving applications, appears to be without any basis. In our view the cutoff date which is fixed in the present case with reference to the beginning of the calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prone to vagaries and is less uncertain.
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11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates crossed the maximum age limit; or to mitigate hardship in a given case. are not available for the post, and the only candidate who is suitable has Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are agebarred. We fail to see 13 how the power of relaxation can be exercised in the manner contended.
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17. In the premises the appeals of the candidates who have challenged the cutoff date under the relevant rules are dismissed while the appeals filed by the State of Rajasthan are allowed. The validity of the Rules concerned relating to the 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) In view of the aforesaid decision also, whenever there is a cutoff date, given for determining maximum or minimum age for the post, in question, there are bound to be some candidates, who will be overaged or who are agebarred, but, this alone cannot be the reason for holding that the cutoff date, fixed by the respondent authorities is arbitrary.
Here also, keeping in mind the cutoff date as 1st January, 2004, candidate like the petitioner will be overaged or will be agebarred and, thus, there cannot be any cutoff date, so precise that there cannot be any candidate, who will not be overaged or agebarred.
(xiii) It has been held by the Hon'ble Supreme Court in the case of Public Service Commission & ors. v. Arvind Singh Chauhan & ors., as reported in (2009) 9 SCC 135, in paragraph nos. 19, 20, 23 and 24, as under:
"19. As far as the finding of the High Court is concerned, had the intention of the Commission been to consider 3132003 as a cutoff date for eligibility, it would have been explicitly specified. The Division Bench has referred to the Circular dated 2232002 issued by the Department of General Administration of the State Government. The relevant portion of the Circular reads:
"Keeping in view the increasing problem of unemployed youths in the State and keeping the interest of the unemployed youths in mind, the Government has again considered and has taken a decision that a further relaxation of two years more needs to be given. Meanwhile, thereby now from March 2000 to March 2003, the maximum agelimit for appointment in government services will be thirtyfive years."
20. Rule 5(C) of the State Services Examination Rules on which reliance was placed by the appellant states:
"5. (C)(a) A candidate must have attained the age of
21 years and must not have attained the age of 30 years on 1st January next following the date of commencement of the competitive examination."
xx xx xx
23. On account of no record of any concession made on the part of the appellants and considering all the circumstances of the case, it is clear that the respondents were over aged on the specified cutoff dates which makes their application liable for cancellation.
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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) In view of the aforesaid decision, cutoff date fixed was 1st January, the next following date of commencement of competitive examination. The cutoff date was slightly shifted as 31st March, 2003 by the decision of the Hon'ble High Court. This was not permitted by the Hon'ble Supreme Court in the aforesaid decision and it has been held that there is no concession, given by the Public Service Commission for age relaxation and, therefore, the candidates cannot get the benefit of the age relaxation. Appeal preferred by the Public Service Commission was allowed.
(xiv) It has been held by the Hon'ble Supreme Court in the case of University Grants Commission v. Sadhana Chaudhary & ors., as reported in (1996) 10 SCC 536, in paragraph no.21, as under:
"21. We find considerable force in the aforesaid submissions of Shri Banerjee. It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works at p. 579 and Sushma Sharma (Dr) v. State of Rajasthan at p. 269.) In the present case, the date, 31121993, as fixed by notification dated 2161995, in the matter of grant of exemption from the eligibility test for appointment on the post of lecturer has a reasonable basis keeping in view the time taken in submitting the Ph.D. thesis or obtaining M. Phil. degree by candidates who had undertaken the study for Ph.D. or M. Phil. degree prior to the issuance of the 1991 Regulations and the date, 31121993, cannot be held to be capricious or whimsical or wide off the reasonable mark. The High Court of Punjab and Haryana has proceeded on the basis that the cutoff date for the purpose of granting exemption from eligibility test should have nexus with the date of the advertisement inviting applications for appointment on the post of Lecturers. The High Court was in error in taking this view. ......................................"
(Emphasis supplied) Thus, in view of the aforesaid decision, the choice of cutoff date as a basis for classification cannot be held as arbitrary, even if no particular reason is forthcoming for the choice of that cutoff date.
(xv) It has been held by the Hon'ble Supreme Court in the case of State of Bihar v. Ramjee Prasad, as reported in (1990) 3 SCC 368, in 15 paragraph no.8, as under:
"8. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as January 31, 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as January 31, 1988 the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix June 30 of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of anyone that experienced candidates were not available in sufficient numbers on the cutoff date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the government's action of fixing the last date for receipt of applications as January 31, 1988 as arbitrary."
(Emphasis supplied) In view of the aforesaid decision also, merely because some of the petitioners will be accommodated if the cutoff date is shifted, which by itself is no reason for holding that the earlier cutoff date fixed by the authority is arbitrary or irrational.
(xvi) It has been held by the Hon'ble Supreme Court in the case of Ramrao v. All India Backward Class Bank Employees Welfare Assn., as reported in (2004) 2 SCC 76, from paragraph nos. 29 to 36, as under:
"29. It is now well settled that for the purpose of effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cutoff date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. In the instant case, the cutoff date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be 16 said to be arbitrary, irrational, whimsical or capricious.
30. The learned counsel could not point out as to how the said date can be said to be arbitrary and, thus, violative of Article 14 of the Constitution of India.
31. It is not in dispute that a cutoff date can be provided in terms of the provisions of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary1 it has been observed: (SCC p. 546, para 21) "21. ... It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: Union of India v.
Parameswaran Match Works, SCC at 310 : SCR at p.
579 and Sushma Sharma (Dr) v. State of Rajasthan, SCC at 66 : SCR at p. 269.)"
32. If a cutoff date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India.
33. Whenever such a cutoff date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cutoff date, but, the fact that some persons or a section of society would face hardship, by itself cannot be a ground for holding that the cutoff date so fixed is ultra vires Article 14 of the Constitution.
34. In State of W.B. v. Monotosh Roy it was held: (SCC pp. 7677, paras 1315) "13. In All India Reserve Bank Retired Officers Assn. v. Union of India a Bench of this Court distinguished the judgment in Nakara6 and pointed out that it is for the Government to fix a cutoff date in the case of introducing a new pension scheme. The Court negatived the claim of the persons who had retired prior to the cutoff date and had collected their retiral benefits from the employer. A similar view was taken in Union of India v. P.N. Menon. In State of Rajasthan v. Amrit Lal Gandhi the ruling in P.N. Menon case was followed and it was reiterated that in matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cutoff date on some rational or reasonable basis has to be fixed for extending the benefits.
14. In State of U.P. v. Jogendra Singh a Division Bench of this Court held that liberalized provisions introduced after an employee's retirement with regard to retiral benefits cannot be availed of by such an employee. In that case the employee retired voluntarily on 1241976. Later on, the statutory rules were 17 amended by notification dated 18111976 granting benefit of additional qualifying service in case of voluntary retirement. The Court held that the employee was not entitled to get the benefit of the liberalized provision which came into existence after his retirement. A similar ruling was rendered in V. Kasturi v. Managing Director, State Bank of India.
15. The present case will be governed squarely by the last two rulings referred to above. We have no doubt whatever that the first respondent is not entitled to the relief prayed for by him in the writ petition."
35. In ViceChairman & Managing Director, A.P. SIDC Ltd. v. R.Varaprasad in relation to "cutoff" date fixed for the purpose of implementation of Voluntary Retirement Scheme, it was said: (SCC p. 580, para 11) "The employee may continue in service in the interregnum by virtue of clause (i) but that cannot alter the date on which the benefits that were due to an employee under VRS were to be calculated. Clause
(c) itself indicates that any increase in salary after the cutoff point/date cannot be taken into consideration for the purpose of calculation of payments to which an employee is entitled under VRS."
36. The High Court in its impugned judgment has arrived at a finding of fact that the Association had failed to prove any malice on the part of the authorities of the Bank in fixing the cutoff date. A plea of malice as is well known must be specifically pleaded and proved. Even such a requirement has not been complied with by the writ petitioners."
(Emphasis supplied) In the aforesaid decision also, the whole concept of cutoff has been explained and it has been held that the cutoff date cannot be held as arbitrary, irrational, whimsical, capricious or violative of Article 14 of the Constitution of India, merely because some candidates come within the wrong side of the cutoff date, especially when there is no malafide alleged for delayed advertisement. In the facts of the present case, ground of malafide for late advertisement has never been canvassed. (xvii) It has been held by the Hon'ble Supreme Court in the case of Shankar K. Mandal v. State of Bihar, as reported in (2003) 9 SCC 519, in paragraph no.5, as under:
"5. Pursuant to the directions contained in the earlier judgment of the High Court as affirmed by this Court, a fresh exercise was undertaken. Since the present appellants were not selected, writ petitions were filed before the High Court. In the writ petition which was filed by fiftyfive persons and disposed of by the Division Bench the conclusions were essentially as follows: (1) Some of the writ petitioners (Writ Petitioners 5, 18, 23, 28, 41 and 53) were overage at the time of their initial appointment and their cases were, therefore, wholly covered by the directions given by the High Court, and they were not entitled to relaxation of age; (2) So far as Writ Petitioners 6, 26, 30 and 55 are concerned, the 18 stand was that they had not crossed the agelimit at the time of making the applications for appointment and, therefore, were within the agelimit at the time of initial appointment and were, therefore, entitled to relaxation of age in terms of the judgment passed by the High Court earlier and affirmed by this Court. This plea was turned down on the ground that what was relevant for consideration related to the age at the time of initial appointment and not making of the application; (3) As regards Writ Petitioner 24, he was underage at the time of appointment. He was permitted to file a representation before the Director of Primary Education and the High Court ordered that his case would be considered afresh; (4) In respect of Writ Petitioners 9 and 17, it was noted that they were refused absorption on the ground that they had not made any application in response to advertisement issued pursuant to the order passed by this Court. Since no material was placed to substantiate this stand and no reasons had been communicated for 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 cutoff date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any nonprescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court (see Ashok Kumar Sharma v. Chander Shekhar, Bhupinderpal Singh v. State of Punjab and Jasbir Rani v. State of Punjab) are as follows:
(1) The cutoff date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cutoff date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to 19 be received by the competent authority."
(Emphasis supplied) In view of the aforesaid decision also, assuming without admitting that there are no statutory rules for the posts of Constables, to be appointed in the respondent State Government and assuming that there are no executive instructions then also, the cutoff date will be the date, as mentioned for the purpose in the advertisement. As per the aforesaid decision also, there is no reason for this Court to make any deviation from the cutoff date (xviii) It has been held by the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy, as reported in (2006) 8 SCC 671, in paragraph nos. 10 and 11, as under:
"10. It is not in dispute that the appellants have framed rules for recruitment known as the Education Code for Kendriya Vidyalayas. Article 45 of the said Code provides for agelimit in the following terms:
"45. Agelimits The following upper agelimits have been prescribed for recruitment to the posts:
Assistant Commissioner 3040 years
Principal 3550 years
PGT 40 years
TGT 35 years
Primary teacher 30 years
Music teacher 30 years
Other teachers including librarian 35 years
LDC and UDC 25 years
Group D Lab Attendants 1825 years
The upper agelimits are relaxable in the case of special categories as follows:
(i) Scheduled Caste/Tribe 5 years
(ii) Retrenched Central Government Period of their service in
employees including defence civil/military departments
personnel increased by 3 years.
The appointing authority can, in his discretion, relax these agelimits in deserving cases on the recommendation of the Appointing Committee/Selection Committee."
11. The respondents are not members of the Scheduled Caste or Scheduled Tribe. Agelimit is prescribed for appointment to the general category of employees. The upper agelimit for appointment to the post of LDC is 25 years. The advertisement also says so. The Rules, as noticed hereinbefore, are in two parts. The first part talks about the agelimit. The second part provides for relaxation. Such relaxation can be granted for the purpose specified i.e. in favour of those who answered the descriptions stated therein. Relaxation of agelimit 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 20 authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the agelimits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As the respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions."
(Emphasis supplied) In view of the aforesaid case also, grant of age relaxation was quashed and set aside by the Hon'ble Supreme Court. In the facts of the present case, there is no clause for age relaxation. Looking to the aforesaid decision, the age relaxation can be given only as per the rules and as provided by the respondents. It should be within the four corners of the law. In absence of any such policy decision by the State for age relaxation, it cannot be granted in the judicial review. (xix) It has been held by the Hon'ble Supreme Court in the case of Government of Andhra Pradesh v. N. Subbarayudu, as reported in (2008) 14 SCC 702, in paragraph nos. 5 to 9, as under:
"5. In a catena of decisions of this Court it has been held that the cutoff date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cutoff dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cutoff date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal.)
6. No doubt in D.S. Nakara v. Union of India this Court had struck down the cutoff date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case as observed in para 29 of the decision of this Court in State of Punjab v. Amar Nath Goyal1.
7. There may be various considerations in the mind of the executive authorities due to which a particular cutoff date has been fixed. These considerations can be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cutoff date. The Government must be left with some leeway and free play at the joints in this connection.
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8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cutoff date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counteraffidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad, Union of India v. Sudhir Kumar Jaiswal (vide SCC para 5), Ramrao v. All India Backward Class Bank Employees Welfare Assn. (vide SCC para 31), University Grants Commission v. Sadhana Chaudhary, etc. It follows, therefore, that even if no reason has been given in the counteraffidavit of the Government or the executive authority as to why a particular cutoff date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cutoff date leads to some blatantly capricious or outrageous result.
9. As has been held by this Court in Aravali Golf Club v. Chander Hass and in Govt. of A.P. v. P. Laxmi Devi the court must maintain judicial restraint in matters relating to the legislative or executive domain."
(Emphasis supplied) In view of the aforesaid decision, even if no reason has been given in the counter affidavit of the Government that why a particular cutoff date has been fixed or chosen, still the court must not declare it as arbitrary or violative of Article 14 of the Constitution of India, because the fixation of cutoff date has various considerations. (xx) Learned counsel appearing for the petitioner has placed heavy reliance upon the decisions, rendered by Hon'ble Patna High Court in the case of Dr. Rabindra Kumar Singh & Ors v. State of Bihar & Ors., as reported in 2000(3) PLJR 231 and in case of Subodh Kr. Jha v. State of Jharkhand & Ors., as reported in 2005(3) JCR 505. (xxi) It is submitted by the learned counsel for the State that in both the aforesaid decisions, the aforesaid binding decisions of the Hon'ble Supreme Court have not been pointed out at all and hence they are per incuriam.
For canvassing this contention of per incuriam, learned counsel for the State has put reliance on the following decisions:
A.R. Antulay v. R.S. Nayak, as reported in (1988)2 SCC 602 Pr.
Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, as reported in (1990)3 SCC 682 Pr. 40;
Mamleshwar Prasad v. Kanhaiya Lal, as reported in (1975) 2 SCC 232 Pr.
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 Pr.128 onwards;
22 (xxii) Looking to the aforesaid decisions, I accept the contention raised by the learned counsel for the State that these two decisions are per incuriam. The binding decisions of the Hon'ble Apex Court have not been cited at all. The aforesaid decisions of the Hon'ble Supreme Court cover the issue, involved of fixing of cutoff date and grant of age relaxation. Thus, in view of the binding decisions of approximately one dozen decisions of the Hon'ble Supreme Court, it cannot be said that the cutoff as 1st January, 2004, which has been prescribed by the executive instructions and which is referred in the public advertisement for the posts of Constables is arbitrary, whimsical or capricious and, thus, I see no reason to alter and refix it.
(xxiii) Learned counsel for the petitioner has also relied upon the decisions, rendered by this Court in the case of Sanjeev kumar Sahay & Ors. v. State of Jharkhand & Ors., as reported in 2008(3) JCR 267. (xxiv) Learned counsel for the State has again relied upon the aforesaid decisions and submitted that the aforesaid decision is also per incuriam and is based upon the concession, given by the learned Advocate General of the State for age relaxation, paragraph nos. 21, 22, 23, 24 and 25 thereof, read as under:
"21. Learned Advocate General appearing for the State has very fairly submitted that there has been inordinate delay in framing of Rules, as a result of which, most of the Law Graduates eligible to appear in the examination have crossed their age. Learned Advocate General, therefore, submitted that it is a fit case where one time relaxation be given to the candidates by fixing suitable cutoff so that candidates who were eligible at least on the date when Rule was framed may not be deprived of from appearing in the examination.
22. Mr. S. Piprawall, learned counsel appearing for the Commission, adopted that argument advanced by learned Advocate General and submitted that this relaxation cannot be treated as precedence for all the time.
23. Mr. V.P. Singh, learned counsel appearing on behalf of the Jharkhand High Court, referred to Rule 5 of the Jharkhand Judicial Services Recruitment Rules, 2004 submitted that there is no provision of relaxation of age in the said rule. However, Mr. Singh submitted that having regard to the facts of the case and the fair stand taken by the learned Advocate General, there would be no difficulty in giving one time relaxation.
24. We appreciate the submissions made by the learned Advocate General and the learned counsel appearing for the Jharkhand High Court. However, in the facts and circumstances of the case, we have to decide what would be the cutoff date.
23
25. As noticed above, in the case of All India Judge's Association (supra), the Supreme Court issued specific directive for filling up the existing vacancies in subordinate Courts and in all levels latest by 31 March, 2003 st . A Division Bench of this Court also in Rajnish Mishra's case (P.I.L. Case)(supra), decided on 6.1.2003 directed the Government to finalize the Rule which was not finalized within time. It was only by Gazette notification dated 4.4.2005, Rule was published and notified. In our considered opinion, therefore, 31st March, 2003 shall be cutoff date for the reason that if the Supreme Court and the High Court orders would have been complied with, the Rule could have been published in March, 2003."
(Emphasis supplied) In view of the aforesaid paragraphs, it appears that:
(a) Concession was given by the learned Advocate General for age relaxation;
(b) Counsel for the Jharkhand Public Service Commission, Ranchi, has also adopted the argument, canvassed by the learned Advocate General and has pointed out that this relaxation may not be treated as precedent for all time to come;
(c) The whole aforesaid decision was based upon the facts and circumstances of the case, especially in the light of specific directive for filling up the existing vacancies in subordinate courts as per the decision, rendered in the case of All India Judge's Association, as reported in AIR 2002 SC 1753 and the vacancies were to be filled up prior to 31st March, 2003.
(d) Similarly, the aforesaid decision was based upon the facts, keeping in mind the direction, given in the Public Interest Litigation in th case of Rajneesh Mishra v. State of Jharkhand, as reported in 2003(1) JCR 443 (Jhr.).
Thus, the decision, rendered by this Court in the case of Sanjeev kumar Sahay & Ors. v. State of Jharkhand & Ors., as reported in 2008(3) JCR 267, is based upon its own facts and concession, given by the Advocate General of the State of Jharkhand, whereas in the facts of the present case, no concession has been given by the State of Jharkhand. Similar was the observation, as stated herein above in the decision, rendered in the case of Public Service Commission v. Arvind Singh Chauhan, (2009) 9 SCC 135, wherein at paragraph no.23 it was held by the Hon'ble Supreme Court that in absence of any record of concession, made on the part of the appellant (Public Service Commission) and considering all the circumstances of the case, it is clear that the candidates 24 overaged on specified cutoff date, which makes their applications liable for cancellation. Thus, the appeal preferred by the Public Service Commission was allowed and the order, granting age relaxation was quashed.
In view of the facts and aforesaid binding decisions of the Hon'ble Supreme Court and in view of the concession, given by the learned Advocate General and in the light of the particular facts of the case, the decision, as reported in 2008(3) JCR 267 was delivered by this Court whereas the facts of the present case are absolutely different and hence the said judgment if factually not applicable for deciding the issue, in question.
7. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I see no reason to change the cutoff date so as to make the present petitioner eligible for the post of Constable and there is no arbitrariness on the part of the respondentGovernment in fixing the cutoff date as 1st January, 2004. In view of the aforesaid facts, there is no substance in this writ petition and, hence, the same is, hereby, dismissed.
(D.N. Patel, J.) Ajay