Kalyan Singh & Another vs State Of U.P. & Others
2013 Latest Caselaw 4255 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 
										  AFR
 
Case :- WRIT - A No. - 38047 of 2012
 

 
Petitioner :- Kalyan Singh & Another
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Siddharth Khare, Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Misra,J.

1. Heard Sri Siddharth Khare, learned counsel for the petitioners and learned Standing Counsel for the respondents. With their consent the writ petition is being finally decided at the admission stage itself.

2. The facts of the case are that the District Panchayat Raj Officer, Jhansi, invited applications for appointment on 589 posts of Safai Karmi in the Panchayat Raj Department, vide advertisement dated 28th July, 2008. As per the advertisement, one of the eligibility conditions was that a candidate, as on 01.07.2007, should neither be less than 18 years nor more than 35 years in age. The petitioner no.1, whose date of birth is 10.06.1990, and the petitioner no.2, whose date of birth is 01.02.1990, applied pursuant to the advertisement and with their applications they enclosed their respective educational certificates disclosing their date of birth. Pursuant to their application for appointment, the petitioner no.1 was granted appointment vide order dated 29.07.2008 and the petitioner no.2 was granted appointment vide order dated 22.10.2008. Although the appointment order limited the period of appointment up to 28.02.2009 but as per paragraph no.11 of the writ petition, which has not been specifically denied in the counter affidavit, the aforesaid time limit was provided because, initially, the posts were sanctioned up to that period, which was subsequently extended and the petitioners continued to serve without any objection in that regard. However, on 30.04.2012, the District Panchayat Raj Officer, Jhansi issued notice to the petitioners thereby calling upon the petitioners to explain as to why their services be not terminated on the ground that on 01.07.2007, the petitioners were below 18 years, which was the minimum age required for a candidate to be eligible, as per the advertisement. Petitioners submitted their reply to the show cause notice, thereafter, by separate orders dated 21st July, 2012 (Annexure Nos.7-A & 7-B), the service of the petitioners was terminated on the ground that they were not eligible as per the terms and conditions mentioned in the advertisement. It is this order of termination, which has been challenged through this petition.

3. The submission of the learned counsel for the petitioners is that the minimum age for recruitment in services under the State Government is provided by Uttar Pradesh Recruitment in Services (Age Limit) Rules, 1972 (hereinafter referred to as Age Limit Rules), which have been framed under Article 309 of the Constitution of India. It has been submitted that as per Rule 6 of the Age Limit Rules, 1972 a candidate must have attained the minimum age, and must not have attained the maximum age, as prescribed from time to time, on the first day of July of the calendar year in which vacancies for direct recruitment are advertised. Relying on Rule 6, the learned counsel for the petitioners submitted that the vacancies, as per the advertisement, were first advertised on 16th June, 2008 and, thereafter, the remaining vacancies were advertised again on 28th July, 2008, therefore, the cut off date for attaining minimum age limit would be the first day of July, 2008 and not first day of July 2007 as fixed in the advertisement. It has been submitted that as both the petitioners on the first day of July, 2008 were over 18 years in age, they were well within the age limit prescribed by the Rules. It has also been submitted that it is well settled principle in law that where the eligibility condition prescribed in the advertisement is in direct conflict with the Rules framed under Article 309 of the Constitution of India, it is the Rule that would prevail. It has thus been submitted that the condition in the advertisement that a candidate must have attained the minimum age of 18 years as on 01.07.2007 ought to have been read as 01.07.2008 so as to make it in consonance with the Rules. It has been submitted that termination of service of the petitioners, after nearly four years of service, on the above ground, is arbitrary and illegal, particularly when the petitioners were fully eligible under the Age Limit Rules, 1972.

4. Per contra, the learned Standing Counsel submitted that as the advertisement had clearly provided a cut off date i. e. 01.07.2007 for attaining minimum age by a candidate and the petitioners had, admittedly, not attained the minimum age on the cut off date, therefore, their services were rightly terminated. It has also been submitted that the petitioners are not entitled to any relief as they had not earlier challenged the cut off date fixed in the advertisement.

5. Before examining the weight of the respective submissions of the learned counsel for the parties it would be useful to examine the provisions of U.P. Recruitment in Services (Age Limit) Rules, 1972. It is not disputed that these Rules are applicable to the post in question. Rule 6 of the aforesaid Rules, a copy whereof has been enclosed with the counter affidavit, provides as follows:-

"6. Computation of Age.- Notwithstanding anything to the contrary contained in any service rules, for the services and posts, whether within or outside the purview of the Public Service Commission, a candidate must have attained the minimum age and must not have attained the maximum age, as prescribed from time to time, on the first day of July of the calendar year in which vacancies for direct recruitment are advertised by the Public Service Commission or any other recruiting authority, or as the case may be, such vacancies are intimated to the Employment Exchange.

Provided that nothing in this rule shall apply to a case where such advertisement or intimation has been made before the commencement of the Uttar Pradesh Recruitment to Services (Age Limit) (Fifth Amendment) Rules, 1984."

6. A perusal of Rule 6 of the Age Limit Rules reveals that a candidate in order to be eligible must have attained the minimum age on the first day of July of the calender year in which vacancies for direct recruitment are advertised. A "calender year" means the period from January 1 to December 31 inclusive (see Black's Law Dictionary, Fifth Edition page 184 as well as P. Ramanatha Aiyar's Advanced Law Lexicon, Fourth Edition, Volume 1, page 664). Admittedly, the minimum age prescribed for eligibility of a candidate for the post concerned was 18 years and the advertisement was issued first, on 16th June, 2008 and, thereafter, on 28th July, 2008, as is clear from Annexure No.1 to the writ petition. Therefore, with reference to an advertisement issued either in July, 2008 or even in June, 2008, the minimum age of 18 years ought to have been attained by a candidate on or before 01.07.2008 and not on or before 01.07.2007, as was provided in the advertisement dated 28th July, 2008. 7. It is noteworthy that Rule 4 of the U.P. Recruitment in Services (Age Limit) Rules, 1972 provide for overriding effect to the Rules. Rule 4 provides as follows:-

"4. Overriding effect to the rules.- (1) Notwithstanding anything to the contrary contained in the relevant Service Rules, these rules shall have effect in all cases except in cases where advertisements for recruitment have been issued before February 24, 1983.

(2) If advertisements have issued or applications have been invited for selection to any post before the promulgation of the Uttar Pradesh Recruitment to Services (Age Limit) (Second Amendment) Rules 1983, computation of age will be made from the same date which was specified in the advertisement or in the order inviting applications."

8. A perusal of sub-rule (2) of Rule 4 reveals that if advertisements have been issued or applications have been invited for selection to any post before the promulgation of the U.P. Recruitment to Services (Age Limit) (Second Amendment) Rules, 1983, computation of age will be made from the same date which was specified in the advertisement or in the order inviting applications. By sub-rule (1) of Rule 4 it is provided that the aforesaid Rules would have effect in all cases except in cases where advertisements for recruitment have been issued before 24th February, 1983. As the advertisement, in the instant case, was issued after February 24, 1983, the Rules would, therefore, become applicable and as, on 01.07.2008, both the petitioners were above 18 years, they had attained the minimum age limit prescribed under the Service Rules and were, therefore, eligible for appointment. In fact, both the petitioners had attained the minimum age of 18 years even on the date of first advertisement i.e. 16th June, 2008.

9. In the case of Bhupinderpal Singh v. State of Punjab, (2000) 5 SCC 262, at page 268, the apex court in paragraph 13 observed as follows:

"13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, A.P. Public Service Commission v. B. Sarat Chandra, District Collector and Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, Rekha Chaturvedi v. University of Rajasthan, M.V. Nair (Dr) v. Union of India and U.P. Public Service Commission U.P., Allahabad v. Alpana the High Court has held (i) that 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 and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; (ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with....".

10. Following the above view, in the case of Shankar K. Mandal v. State of Bihar, (2003) 9 SCC 519, in para 5 of its judgment, the apex court summarized the principles as follows:

"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."

11. In view of the law noticed above, 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 and if there be no cut-off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority.

12. Coming to the facts of the instant case, the Age Limit Rules were applicable, which provided for the cut off date. As per Rule 6, the first day of July of the calender year in which the advertisement was issued happened to be the cut off date. The advertisement having been issued in the calender year 2008, the cut off date by reference to which the eligibility requirement was to be satisfied was 1st day of July 2008. As both the petitioners were above 18 years of age, as on 1st day of July, 2008, this Court finds that age-wise both the petitioners were eligible for appointment. Hence, termination of their service, on ground of being ineligible age-wise, is legally unsustainable.

13. The submission of the learned Standing Counsel that since the petitioners had not challenged the cut off date in the advertisement, with regards to attainment of minimum age, therefore they cannot challenge the termination of their appointment cannot be accepted for the simple reason that the State itself entertained their candidature and provided appointment to the petitioners knowing full well that the petitioners were below the age limit prescribed by the advertisement.

14. There is a presumption that law is known to all. In any case, the State, which makes the law, cannot claim its ignorance. Therefore, once it is found that as per the Age Limit Rules the cut off date, with regards to attainment of minimum age, was 1st day of July, 2008, in respect to the recruitment in question, it would be presumed that the State by accepting the application of the petitioners, who had completed 18 years in age by 1st day of July, 2008, had accepted the said date, as the legally permissible cut off date. Thus, there was no occasion for the petitioners to have earlier challenged the cut off date fixed in the advertisement. In such circumstances, it does not lie in the mouth of the state authorities to say that the petitioners cannot challenge their termination as they had not challenged the cut off date in the advertisement.

15. Perhaps something could have been said with regards to legality of petitioners' appointment had there been a prompt challenge to it by a non-applicant, similarly situated as the petitioners, on the ground that he was deprived of an opportunity to apply, on account of a different cut off date in the advertisement, therefore, the recruitment process be reopened. But that is not the case here. As far as the State is concerned, it would be completely arbitrary on its part, now, after nearly four years of appointment, to say that the petitioners were not age-wise eligible under the advertisement, particularly, when they were otherwise eligible under the Age Limit Rules. More so, when it is not the case of the state-respondents that the petitioners had applied for appointment under some forged certificates to show that they were eligible under the advertisement. In fact, the show cause notice as also the order impugned, in respect of both the petitioners, makes it clear that the petitioners had disclosed their correct age at the time of applying for appointment and had also annexed their educational certificates disclosing their date of birth.

16. For the reasons aforesaid, the Court is of the view that termination of service of the petitioners, on the ground that they were not age-wise eligible for appointment, is not legally sustainable. The writ petition is, therefore, allowed. The termination orders dated 21st July, 2012 passed by the District Panchayat Raj Officer, Jhansi (Annexure Nos.7-A and 7-B to the writ petition) are hereby quashed. The petitioners would be entitled to all the consequential benefits. There is no order as to costs.

Order Date :- 18.7.2013

AKShukla/-