Manish Kumar Singh And 19 Others vs State Of U.P. And 6 Others
2016 Latest Caselaw 4505 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

'AFR'
 
Court No.7
 
Case :- WRIT - A No. - 30156 of 2016
 

 
Petitioner :- Manish Kumar Singh And 19 Others
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Rahul Srivastava
 
Counsel for Respondent :- C.S.C.,Mrigraj Singh
 
And
 
Case :- WRIT - A No. - 30254 of 2016
 

 
Petitioner :- Ashutosh Jaiswal And 10 Others
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Shreeprakash Singh,Vishwanath Vishwakarma
 
Counsel for Respondent :- C.S.C.,Mohd Shere Ali
 
And
 
Case :- WRIT - A No. - 30746 of 2016
 

 
Petitioner :- Tej Pratap Singh Yadav And 5 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ganesh Mani
 
Counsel for Respondent :- C.S.C.,Awadhesh Kumar
 
And
 
Case :- WRIT - A No. - 30662 of 2016
 

 
Petitioner :- Sanjeev Kumar Bidua @ Sanjeev Kumar And 3 Others
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Yogendra Kumar,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,Dhananjay Pratap Singh
 
And
 
Case :- WRIT - A No. - 31134 of 2016
 

 
Petitioner :- Vidya Bhushan Shukla And 20 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Afshan Shafaut
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Siddharth Khare
 

 
Hon'ble Manoj Misra, J.

1. These writ petitions have been filed by candidates who have undertaken the BTC-2013 Training Course and have given their final semester examinations but before their result of the final semester could be declared, the State Government by Notification dated 16.06.2016 granted permission for recruitment of 16448 Assistant Teachers in Primary Schools under the U.P. Basic Education Board with a rider that a candidate to be eligible to apply for appointment must hold minimum educational as well as training qualification by or before 16.06.2016. Aggrieved by the cut-off date so fixed these petitions have been filed assailing the same with additional prayers that their final semester examination results be declared and that they may be permitted to apply for the post. Considering that all these petitions raise common questions of law and on facts there are no issues, with the consent of learned counsel for the parties these petitions were heard together and are being decided by a common judgment.

2. In these writ petitions I have heard Sri R.K. Ojha, Sri G.K. Singh, learned senior counsels, Sri Rahul Srivastava, Sri Sreeprakash Singh, Sri Ganesh Mani Tripathi, Ms. Afshan Shafaut and Sri Yogendra Kumar for the petitioners; learned Standing Counsel for the State; Sri B. P. Singh and Sri A.K. Yadav for the Basic Education Board, U.P. and the Basic Shiksha Adhikari of the districts concerned; and Sri Ashok Khare, learned Senior Counsel assisted by Ashish Tripathi for the intervening respondents in Writ A No.30156 of 2016, which has been treated and heard as the leading case.

3. The record reflects that by government notification dated 29.07.2015, the Govt. of U.P. identified and approved creation of 19,948 posts of Assistant Teacher in Basic Schools run and established by U.P. Basic Education Board across various districts within the State with a declaration that posts would be filled in stages, dependent on the need to fill up the posts, subject to availability of budgetary support. Thereafter by government notification dated 14.12.2015 out of those 19,948 posts of Assistant Teacher, 3,500 posts were converted into that of Assistant Teacher (Urdu Language) with a declaration that the earlier government notification dated 29.07.2015 be treated as amended to that extent. Subsequently, by government notification dated 05.01.2016, a decision was taken to fill up those 3,500 posts of Assistant Teacher (Urdu Language) and guidelines were laid therein in respect of the recruitment process. Pursuant to that advertisements were published calling for applications from eligible candidates for those 3500 posts in various districts. The advertisements so published provided that a candidate must possess the requisite essential educational and training qualification by the last date fixed for online application registration. In respect of remaining 16,448 posts of Assistant Teacher that were identified and creation of which was approved by notification dated 29.07.2015, a government notification dated 16.06.2016 was issued thereby granting permission for recruitment on the said posts with a specific direction that only those candidates would be eligible for participation in the recruitment process, who possess the minimum educational/training qualification on the date of issuance of the government notification. It was observed in the notification that the Lucknow Bench of this Court in Writ Petition (S/S) No. 326 of 2016 (Mahendra Pratap Singh and seven others v. State of U.P. and Others) had directed that in future selections, the date on which the eligibility is to be determined should be specifically fixed and not left to unforeseen circumstances as had arisen in that case. Pursuant to the said government notification, advertisements were issued by the Basic Shiksha Adhikari in various districts within the State of Uttar Pradesh calling for applications from eligible candidates against those 16,448 posts of Assistant Teacher by specifically providing in the advertisement that a candidate must possess minimum educational qualification/training qualification by 16.06.2016 as was directed by the Government Notification dated 16.06.2016. It is this cut-off date which has been assailed in these writ petitions.

4. The case of the petitioners is that they are all undergoing training course of BTC -2013 and that they have all given their examination by the month of May, 2016 but their results have not been declared prior to 16.06.2016, which is the cut-off date, even though, in ordinary course, their results ought to have been declared by the said date, therefore, this cut-off date seriously affects their right to be considered for appointment. It is their case that, subsequently, their results have been declared before the last date fixed for submission of the application form but because of the cut off date they could not apply. It is their case that if there had been no such cut off date for holding educational/ training qualification then by law the last date for submission of application form would have been the date for determining eligibility and in that scenario they would have all been eligible to apply. Accordingly, it is their prayer that the cut off date 16.06.2016 be struck down and all those who hold eligibility qualification by last date fixed for submission of application be allowed to apply.

5. During the course of arguments in Writ A No. 30156 of 2016 i.e. the leading petition, on 06.07.2016 an order was passed by this Court requiring the petitioners to file a supplementary-affidavit bringing on record such material so as to demonstrate that result of BTC course of any subsequent year, within the State of U.P., was declared prior to the result of BTC course of any previous year. This exercise was undertaken to ascertain as to whether result of BTC-2014 course was declared ahead of BTC-2013 course or not. Pursuant to the said direction, during the course of hearing, the learned counsel for the parties stated that as per their instructions result of any subsequent BTC course has not been declared ahead of BTC-2013 course.

6. Learned counsel appearing on behalf of the petitioners have assailed the cut-off date 16.06.2016 on the following grounds:

(a) That the recruitment on the posts of Assistant Teacher in Basic Schools, run by Basic Education Board, U.P., is governed by U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "1981 Rules"), which have been made in exercise of power under sub-section (1) of Section 19 of the U.P. Basic Education Act, 1972 (hereinafter referred to as "1972 Act"). Rule 4 of 1981 Rules provides that there shall be separate cadres of service for each local area. "Local area" is defined in Rule 2(1)(i) as an area over which a local body exercises jurisdiction. Rule 14 of 1981 Rules provides for determination of vacancies and preparation of list of candidates for appointment. Sub-rule (1) of Rule 14 provides that in respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9, and notify the vacancies in at least two newspapers having adequate circulation in the State as well as in the concerned district thereby inviting applications from candidates possessing prescribed training qualification from the district concerned and who have passed the Teacher Eligibility Test conducted by Government of U.P. or the Government of India. It has been submitted that "Appointing Authority" has been defined in Rule 2 (1) (b) of the Rules as the District Basic Education Officer provided that Additional District Basic Education Officer (Women) shall be deemed to be the appointing authority in relation to women teachers in a district where such officer is posted. Rule 2 (1) (f) defines "District Basic Education Officer" as an officer appointed by the State Government as such for a particular district. Rule 3 provides that the 1981 Rules shall apply to all teachers of local bodies transferred to the Board under Section 9 of the Act, 1971 and all teachers employed for the Basic and Nursery Schools established by the Board.

By placing reliance on the aforesaid provisions of the Rules, 1981, it has been contended on behalf of the petitioners that the post of an Assistant Teacher contemplated by the 1981 Rules is a post in reference to a particular local area whose appointing authority is the District Basic Education Officer of the district concerned, who has not only to determine the vacancies but also to notify the same by publication in newspapers having adequate circulation in the State as well as in the district concerned inviting applications from candidates possessing prescribed training qualifications from the district concerned and who have passed the Teacher Eligibility Test, conducted by Government of U.P. or the Government of India. It has been submitted that since it is the District Basic Education Officer who has to determine the vacancies and thereafter notify the vacancies calling for applications from candidates possessing prescribed educational /training qualification from the district concerned, it is the District Basic Education Officer alone, who can fix a cut-off date for possession of minimum educational / training qualification by an applicant whereas the State Government would have no jurisdiction to fix any such cut off date. It has been submitted that in the instant case, the cut-off date has not been fixed by the District Basic Education Officer by independently exercising his own mind but has been fixed under the direction of the State Government therefore the cut-off date so fixed is vitiated by non application of mind and deserves to be struck down and as the 1981 Rules do not provide for any cut off date for holding minimum educational/ training qualification, the last date for submission of the application would be deemed to be the cut off date by which a candidate must possess the educational /training qualification.

(b) That 16,448 posts of Assistant Teacher for which recruitment process has been initiated by notification dated 16.06.2016, were identified and determined by the State Government by notification dated 29th July, 2015 as part and parcel of 19,948 posts of Assistant Teacher out of which 3500 posts were converted into posts of Assistant Teacher (Urdu Language) for which the recruitment process was initiated separately by Government Notification dated 05th January, 2016 wherein the cut-off date for holding the minimum educational qualification/training qualification was the last date for submission of application. It has been submitted that the State cannot adopt two different criteria for fixing cut-off date for eligibility to apply in respect of posts that were initially identified and determined by a common notification.

(c) That the cut-off date has been fixed only to exclude a large section of candidates who though had undertaken the BTC-2013 course examination in the month of May, 2016 but their results were not declared by June, 2016 even though, in ordinary course, their results should have been declared much earlier. It has been submitted that the objective of an employer should be to ensure that, as far as possible, maximum number of candidates apply for appointment so that the selection is broad based and meritorious persons are appointed. But by adopting an arbitrary cut off date a large section of candidates who were undertaking BTC 2013 course have been excluded from consideration, therefore the entire selection would be limited to those candidates who had undertaken the BTC course of 2012 or before thereby affecting the quality of teachers ultimately appointed.

(d) That the cut off date so fixed suffers from the vice of malice in law inasmuch as the State was throughout aware that BTC 2013 course batch of candidates had already given their examination and their results would be declared shortly, therefore, fixation of a cut-off date in the month of June, 2016 just before the declaration of their results was made maliciously to exclude their consideration and such exclusion was made only to benefit those who had secured training in the preceding years but were not successful in finding their names in the select list in respect of earlier recruitment.

(e) That Rule 6 of 1981 Rules provides for a criteria on the basis of which a cut-off date in respect of eligibility could be fixed. According to Rule 6, a candidate, for recruitment to any post referred to in clause (a) of Rule 5 or sub-clauses (iii) and (iv) of clause (b) of Rule 5 or proviso to Clause (b) of Rule 5, must have attained the age of Twenty one years and must not have attained the age of more than thirty-five years on the first day of July following the year in which the vacancy is notified. This discloses the legislative policy that the cut-off date for possessing minimum educational/training qualification must be in sync with the cut-off date fixed for age qualification. Accordingly, the cut-off date for holding minimum educational/ training qualification, which is even prior to the date of the advertisement, is nothing but arbitrary and is not in accordance with Rule 6 of 1981 Rules.

7. Per contra, the learned counsel for the respondents have submitted as follows:

(a) That 1972 Act is an Act to provide for the establishment of a Board of Basic Education and for matters connected therewith. Section 3 of the 1972 Act provides for constitution of the Board with effect from such date as the State Government may, by notification in the Gazette, appoint. Section 4 provides for functions of the Board and states that subject to the provisions of the said Act, it shall be the function of the Board to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State, to raise its standards and to correlate it with the system of education as a whole in the State. Section 13 of 1972 Act provides for the control by the State Government. It provides that the Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of the 1972 Act. Sub-section (3) of section 13 of 1972 Act provides that the Board or any local body shall furnish to the State Government such reports, and other information, as the State Government may from time to time require for the purposes of the Act. Section 19 of 1972 Act provides for rule making power and vests the power in the State Government. Section 19 (1) of the 1972 Act provides that the State Government may, by notification, make rules for carrying out the purposes of the Act. Sub-section (2) of Section 19 provides that in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated there under. Clause (a) of sub-section (2) of Section 19 empowers State Government to make rules to provide for the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees. In exercise of its power under Section 19 of 1971 Act, 1981 Rules have been notified. Rule 4 of 1981 Rules provides that there shall be separate cadres of service under the rules for each local area. The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government provided that the appointing authority may leave unfilled or the Board may hold in abeyance any post or class of posts without thereby entitling any person to compensation. Provided further that the Board may, with the previous approval of the State Government, create from time to time such number of temporary posts as it may deem fit.

Relying on the aforesaid provisions, on behalf of the respondents, it was contended that strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre is subject to the approval of the State Government and the State Government, by virtue of section 13 of the 1972 Act is empowered to issue directions from time to time for the efficient administration of the 1972 Act, which the Board is under an obligation to carry out. Likewise, the Board has power under Section 4 of the 1972, Act to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State and to take all such steps as may be necessary or convenient for, or may be incidental to the exercise of any power, or the discharge of any function or duty conferred or imposed on it by the 1972, Act. Section 6 of Act, 1972 empowers the Board to appoint such person, officers, teachers and other employees as it may, with the previous approval of the State Government, think fit for the purpose of enabling it to efficiently discharge its function. Section 19 (2)(a) provides that the State Government may make rule in respect of the recruitment, and conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6 of the Act, 1972. It has been submitted that keeping in mind the aforesaid provisions and the scheme of the 1972 Act and the 1981 Rules, it can be safely concluded that in absence of there being a provision to the contrary in the 1972 Act or the 1981 Rules, the State was well within its executive power, as conferred on it by Article 162 of the Constitution of India, to fix a cut-off date in respect of possession of minimum educational/training qualification by a candidate to be eligible for participating in the recruitment process.

(b) That the cut-off date, which has been fixed, is the date on which the recruitment process for 16,448 posts was permitted by State Government vide notification dated 16.06.2016, therefore, keeping in mind the direction given by the Lucknow Bench of this Court mandating fixing of a cut off date for possession of eligibility qualifications to avoid confusion, fixing of cut off date by the State Government in exercise of its executive power to ensure uniformity across the state cannot be said to be arbitrary. It has been submitted that the cut-off date, so fixed, is not wide off the mark or out of the Hat so as to be termed arbitrary inasmuch as it co-relates with the date on which the recruitment process was permitted and since neither the 1972 Act nor the 1981 Rules provides for a specific cut-off date in respect of holding of minimum educational /training qualification, the State was well within its jurisdiction to fix a cut-off date as has been fixed and the Board has rightly accepted the same and it has been uniformly applied by the appointing authorities across the State of Uttar Pradesh. It has been submitted that merely because certain class of persons fall on the wrong side of the cut-off date it would not be a ground to challenge the cut-off date.

(c) That the cut off date so fixed is neither in violation of Rule 6 nor Rule 14 or for that matter any of the provisions of the 1981 Rules and, therefore, there are no fetters on the power of either the State Government or the Board or the Basic Shiksha Adhikari concerned to fix a cut off date as has been done. Further, having same cut off date for attaining minimum eligibility, as is for the age, provided by Rule 6 of 1981 Rules, may create an anomalous situation, inasmuch as, if it is so, it could be possible that at the end of recruitment process a selected candidate though may be eligible in terms of age but may not be in possession of minimum educational/training qualification. Therefore, fixing a cut off date for holding eligibility qualifications on the same parameter as is for the age qualification would not be justified and, therefore, Rule 6 cannot be used as a guiding factor to determine the cut off date for holding educational/ training qualifications. It has been submitted that likewise Rule 14 of the 1981 Rules do not provide any guidance for fixing a cut off date in respect of possession of minimum educational/ training qualification. It only provides for notification of the vacancies by the appointing authority in newspapers calling for applications from candidates possessing prescribed educational/training qualification to participate in the recruitment process. But it nowhere restricts the right of the appointing authority to fix a cut-off date for holding minimum educational/training qualification. It has thus been submitted that the impugned cut-off date is not against the provisions of 1981 Rules.

(d) That no one has vested right that he should be considered for appointment. The right of consideration commences from the advertisement and is subject to the various conditions of the advertisement. It cannot be said that the right of consideration flowing from advertisement is distinct and serverable from various conditions of eligibility prescribed in the advertisement. A candidate would have a right of consideration in accordance with the advertisement, if he fulfills various qualifications and eligibility prescribed thereunder and not otherwise. It is not open to a candidate to suggest that he is entitled for the benefit of the advertisement because he falls within the age parameter and therefore the other part which fixes a cut off date for possession of minimum educational/training qualification should be ignored. As the cut off date has been fixed by a Government Notification, which the State Government is empowered to issue not only by the statutory scheme governing basic education but also by Article 162 of the Constitution of India, particularly, in absence of any rule or statutory provision to the contrary, therefore, the cut off date, which is in sync with the date on which the recruitment process was permitted by Government Notification dated 16th June, 2016, cannot be said to suffer from the vice of arbitrariness nor it can be said that it is based on no intelligible criteria, particularly, when no batch of BTC course conducted by the Board subsequent to BTC -2013 has been declared pass before the cut off date. It has been submitted that the BTC -2013 batch cannot be equated with BTC-2012 batch or batches of preceding year therefore the cut off date does not create a class within a class so as to make the cut off date unreasonable or arbitrary. Likewise it cannot be alleged that fixation of such cut off date amounted to malice in law. It has been submitted that the cut off date cannot be assailed merely because it restricts the zone of consideration because whenever a cut off date is fixed, there are always persons who fall on the other side of the cut off but that by itself is not a ground on which a cut off date can be successfully challenged.

ISSUES FOR DETERMINATION

8. Having considered the rival submissions and having perused the record, it would be useful to cull out the issues, which arise for determination in these proceedings. In the opinion of the Court following issues arise for determination:-

(i) Whether the State Government had jurisdiction to fix a cut off date for possession of minimum educational/training qualification in respect of appointment on 16448 posts of Assistant Teacher in Primary Schools run by the U.P. Basic Education Board?

(ii) Whether the cut off date, as fixed, is in violation of the provisions of U.P. Basic Education (Teachers) Service Rules, 1981?

(iii) Whether the cut off date is arbitrary and discriminates persons similarly situated on no intelligible criteria?

RELEVANT PROVISIONS OF 1972 ACT and 1981 RULES

9. Before proceeding to decide the aforesaid issues, it would be useful to examine the relevant provisions of the 1972 Act and the 1981 Rules.

10. The 1972 Act is an Act to provide for the establishment of a Board of Basic Education and for matters connected therewith. Section 2 (1) (b) defines basic education as education up to eighth class imparted in schools other than high schools or intermediate colleges. "Board" is defined in section 2(c) as the Uttar Pradesh Board of Basic Education constituted under Section 3. Section 3 provides that from such date as the State Government may, by notification in the Gazette, appoint, there shall be established a Board to be known as the Uttar Pradesh Board of Basic Education. Section 4 provides for the functions of the Board. Sub-section (1) of section 4 provides that it shall be the function of the Board to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State, to raise its standards and to correlate it with the system of education as a whole in the State. Sub-section (2) of Section 4 provides that without prejudice to the generality of the provisions of sub-section (1) the Board shall be empowered to do various acts enumerated thereunder.

11. Section 6 of the 1972 Act provides as follows:

"6. Officers and other employees of the Board.--(1) For the purpose of enabling it efficiently to discharge its functions under this Act the Board may appoint such number of officers, teachers and other employees as it may, with the previous approval of the State Government, think fit."

12. Section 13 of 1972 Act provides for control by the State Government by providing as follows:-

"13. Control by the State Government : (1) The Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.

(2) If in, or in connection with, the exercise of any of its powers and discharge of any of the functions by the Board under this Act, any dispute arises between the Board and the State Government, or between the Board and any local body, the decision of the State Government on such dispute shall be final and binding on the Board or the local body, as the case may be.

(3) The Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of this Act."

13. Section 19 of the 1972 Act provides for the rule making power of the State Government. The same is reproduced herein below:-

"19. Power to make Rules.- (1) The State Government may, by notification, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-

(a) the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6;

(b) the tenure of service, remuneration and other terms and conditions of service of officers, teachers and other employees transferred to the Board under Section 9;

(c) the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognized by the Board.

(d) any other matter for which insufficient provision exists in the Act and provision in the rules is considered by the State Government to be necessary.

(e) any other matter which is to be or may be prescribed."

14. In exercise of power under Section 19 (1) of the 1972 Act the Governor has framed 1981 Rules. Rule 4 of Rules, 1981 provides as follows:-

"4. Strength of the service.- (1) There shall be separate cadres of service under these rules for each local area.

(2) The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government.

Provided that the appointing authority may leave unfilled or the Board may hold in abeyance any post or class of posts without thereby entitling any person to compensation.

Provided further that the Board may, with the previous approval of the State Government, create from time to time such number of temporary posts as it may deem fit."

15. Rule 5 of 1981 Rules provides for the sources of recruitment to the various categories of posts mentioned thereunder. Part IV of the 1981 Rules provides for the qualification.

16. Rule 6 of the 1981 Rules provide for the qualification in respect of age of a candidate, which is being reproduced herein below:-

"6. Age.- A candidate for recruitment to any post referred to in Clause (a) or sub-clauses (iii) and (iv) of clause (b) of Rule 5 or proviso to Clause (b) of Rule 5, must have attained the age of Twenty one years and must not have attained the age of more than thirty-five years on the first day of July following the year in which the vacancy is notified:

Provided that the upper age limit shall in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes be Greater by five years or as provided by the Government from time to time:

Provided further that the upper age limit shall in the case of a candidate, who is ex-serviceman, be greater by three years or as provided by the Government from time to time:

Provided also that the upper age limit shall be greater by fifteen years in the case of a handicapped candidate:

Provided also that where after successful completion of a course of training prescribed for teachers of Basic Schools, a candidate could not get appointment due to non-availability of vacancy in the district, the period he has remained unappointed shall not be counted for the calculation of his age if he has not attained the age of more than fifty years on the date of appointment:

Provided also that no upper age limit shall apply in case of B.Ed./ Lt./ B.P.Ed./ C.P.Ed. Or D.P.Ed. Trained candidates who have completed special B.T.C. Training Courses in the year 1999:

Provided also that in case of candidates having proficiency in Urdu and having completed two years B.T.C. Urdu special B.T.C. training course or completed special B.T.C. training course the upper age limit shall be such as may be determined from time to time by the Government.

Provided also that the upper age limit in case of Mualim-e-Urdu degree holders who had obtained such degree before August 11, 1997 shall be not exceeding the age of superannuation:

Provided also that for the selection of candidates as Trainee Teachers, the upper age limit shall be such as may be determined from time to time by the Government."

17. Rule 8 of 1981 Rules provides for the essential qualifications for a candidate to be eligible for appointment to a post. It does not fix any date for holding of such qualification but does specify that for appointment such qualifications are essential.

18. Rule 14 of 1981 Rules provides for determination of vacancies and preparation of list. The same is being reproduced herein below:-

"14. Determination of vacancies and preparation of list.-(1) (a) Determination of vacancies and preparation of list, in respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under Clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, and other categories under Rule 9 and notify the vacancies in at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned and teacher eligibility test passed, conducted by the Government or by the Government of India.

(1) (b) The Government may from time to time decide to appoint candidates, who are graduates along with B.Ed./ B.Ed. (Special Education)/ D.Ed. (Special Education) and who have also passed teacher eligibility test conducted by the Government or by the Government of India, as trainee teachers. These candidates after appointment will have to undergo six months special training programme in elementary education recognised by National Council of Teacher Education (NCTE). The appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes. Backward Classes, and other categories under Rule 9 and advertisement would be issued in at least two leading daily news papers having adequate circulation in the State as well as in concerned district inviting applications from candidates who are graduates along with B.Ed./ B.Ed. (Special Education)/ D.Ed. (Special Education) and who have also passed teacher eligibility test conducted by the Government or by the Government of India.

(1) (c) The trainee teachers, after obtaining the certificate of successful completion of six months special training in elementary education shall be appointed as assistant teachers in Junior basic schools against substantive post in regular pay-scale. The appointing authority will be duty bound to appoint the trainee teachers as assistant teachers within one month of issue of certificate of successful completion of said training.

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement under Clause (a) or (b) of sub-rule (1) of Rule 14 and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment.

(3) (a) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (a) of sub-rule (1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-I:

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall-be placed higher.

(b) The names of candidates in the list prepared under sub-rule (2) in accordance with clause (b) of sub-rule 1) of Rule 14 shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in the appendix-II:

Provided that if two or more candidates obtain equal marks, the candidates senior in age shall be placed higher.

(c) The names of candidates in the list prepared in accordance with Clause (c) of sub-rule (1) of Rule 14 for appointment as assistant teacher shall be same as the list prepared under Clause (b) of sub-rule (3) of Rule 14 unless the candidate under the said list is unable to successfully complete the six months special training course in elementary education in his first attempt. If the candidate successfully completes the six months special training in his second and final attempt, the candidate's name shall be placed under the names of all those candidates who have completed the said six months special training in their first attempt.

(4) No person shall be eligible for appointment unless his or her name is included in the list prepared under sub-rule (2).

(5) The list prepared under sub-rule (2) and arranged in accordance with clause (a) and (b) of sub-rule (3) of Rule 14 shall be forwarded- by the appointing, authority to the selection committee."

ISSUE No.1

19. On the issue whether the State Government under the Scheme of the 1972 Act and the 1981 Rules or otherwise has power to determine/fix the cut off date in respect of possession of minimum educational/training qualification by a candidate, the contention on behalf of the petitioners is that under the 1981 Rules, the appointing authority in relation to a teacher of a Basic School is the District Basic Education Officer. Rule 4 provides that there shall be separate cadre of service for each local area. Local area is defined by Rule 2 (i) as an area over which a local body exercises jurisdiction. Rule 14 (1) provides for determination of vacancies by the appointing authority and for notification of the vacancies by the appointing authority in two newspapers inviting applications from the candidates possessing prescribed qualification from the district concerned with Teacher Eligibility Test pass. According to the petitioners' counsel in the aforesaid scheme the State Government is nowhere in the picture inasmuch as it neither determines the vacancies nor it issues advertisement inviting applications from candidates, therefore, although the rule may be silent in respect of the cut off date for possession of minimum educational/training qualification but such cut off date can only be fixed by the appointing authority upon application of his own mind and not on the dictates of the State Government which has no authority whatsoever to fix a cut off date in that regard. It has been suggested that since the cut off date has not been fixed as per law, the general legal principle would apply which is that in absence of any cut off date, the minimum educational/training qualification must be possessed by an applicant by the last date of submission of an application form.

20. Per contra, on behalf of the respondents it has been submitted that section 4 of the 1972 Act provides that the Board has to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State and to take all such steps as may be necessary and convenient for, or may be incidental to, the exercise of any power, or the discharge of any function or duty conferred or imposed on it by the Act. Section 13 of the Act provides that the Board shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of the Act. Sub-section (3) of section 13 of 1972 Act provides that the Board or any local body shall furnish to the State Government such reports, returns and other information, as the State Government may from time to time require for the purposes of the Act. Section 19 confers rule making power on the State Government in respect of recruitment and service conditions of teachers or employees of the Board. Rule 4 of 1981 Rules provides that the strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government. It has been submitted that since the strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre are to be determined by the Board from time to time with the previous approval of the State Government, therefore, the determination of vacancies by the appointing authority as contemplated by sub-rule (1) of Rule 14 of 1981 Rules is subject to the approval of the State Government. Accordingly, though Rule 14 empowers the appointing authority to determine number of vacancies but that power is subject to the determination made by the Board with the previous approval of the State Government as would be clear from Rule 4 (2) of the 1981 Rules. It has been submitted that incorporation of the proviso to sub-rule (2) of Rule 4 to the effect that the appointing authority may leave unfilled or the Board may hold in abeyance any post or any class of posts would suggest that the cadre and strength of the service has to be determined by the Board with the previous approval of the State Government whereas the appointing authority has power to notify the posts on which appointment is proposed. Therefore, the determination as contemplated by Rule 14 (1) is in respect of the posts which the appointing authority proposes to fill up by recruitment whereas in so far as determination of the strength of the cadre of the teaching staff is concerned, that is done by the Board with the previous approval of the State Government. It has been submitted that since the Rules, 1981 are silent in respect of fixation of a cut off date for possession of minimum educational/training qualification for eligibility to apply under the advertisement, the State Government being the ultimate repository of executive power, having power to make rules, and the subject falling within the legislative competence of the State, is fully empowered by Article 162 of the Constitution of India to fix a cut off date in respect of possession of minimum educational/training qualification while granting permission to recruit teachers.

21. Having noticed the rival submissions, it is clear from the Scheme of the Act, 1972 that the State Government exercises control over the Board and is empowered to issue directions to the Board from time to time for the efficient administration of the Act. The Board or any local body has to furnish to the State Government such reports, returns and other information, as the State Government from time to time require for the purposes of the Act. Section 19 empowers the State Government to make rules to carry out the purposes of the Act and in exercise of those powers, the State Government can make Rules in respect of recruitment and the conditions of service of the persons appointed to the posts of teachers and other employees of Basic Schools. Rule 4 of the 1981 Rules clearly provides that the strength of the cadre of the teaching staff pertaining to a local area and the number of posts in the cadre is to be determined by the Board from time to time with the previous approval of the State Government which signifies that without the approval of the State Government, there can be no fruitful determination of vacancy. The aforesaid scheme reflects that the State Government receives information from the Board in respect of each local area and thereafter on the basis of such information received from time to time, approves the determination of vacancies. There is substance in the submission made on behalf of the respondents that determination of vacancies by an appointing authority as contemplated by Rule 14 of 1981 Rules is subject to determination of vacancy by the Board with the previous approval of the State Government as contemplated by Rule 4(2) of the 1981 Rules.

The determination of vacancies by the appointing authority as contemplated by Rule 14 is not in respect of determining the cadre strength, which is under Rule 4 by the Board with the approval of the State Government, but it is in respect of those posts on which appointment is proposed because the First Proviso to sub-rule (2) of Rule 4 leaves it open to the appointing authority to leave a post or posts unfilled. As the 1981 Rules are silent in respect of the cut off date for possession of minimum educational/training qualification by a candidate, who seeks to apply pursuant to an advertisement, a cut off date can be fixed by providing for it in the advertisement.

22. From the record of these petitions, it is clear that the cut off date 16.06.2016 was fixed by the State Government vide notification dated 16.06.2016 in exercise of its constitutional power, under Article 162, keeping in mind the decision of Lucknow Bench of this Court in Writ Petition (S/S) No. 326 of 2016 dated 18.04.2016, in which it was observed that in future selections, the date in which the eligibility is to be determined should be specifically fixed and not left to unforeseen circumstances as had arisen in that case.

Article 162 of the Constitution of India provides that the executive power of the State extends to those matters with respect to which the Legislature of the State has power to make laws. Such executive instructions would have force of law unless they are contrary to any statutory provision or rule. In Krushna Chandra Sahu (Dr) v. State of Orissa, (1995) 6 SCC 1 (para 31), the apex court observed as follows: "Now, power to make rules regulating the conditions of service of persons appointed on Government posts is available to the Governor of the State under the proviso to Article 309 and it was in exercise of this power that the present rules were made. If the statutory rules, in a given case, have not been made, either by Parliament or the State Legislature, or, for that matter, by the Governor of the State, it would be open to the appropriate Government (the Central Government under Article 73 and the State Government under Article 162) to issue executive instructions. However, if the rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions."

Admittedly, the State Legislature has power to legislate on the subject of Basic Education and the State Government has power to frame rules in exercise of its power conferred upon it by Section 19 of the 1972 Act. Nothing has been shown that the 1972 Act or the 1981 Rules expressly or by necessary implication conferred power to fix cut off date on any particular authority only thereby prohibiting exercise of such power by the State. Since the 1981 Rules are silent in respect of a cut off date for possession of minimum educational/training qualification, the State, therefore, is entitled to fix a cut off date in exercise of its executive power conferred upon it by Article 162 of the Constitution. Accordingly, this Court is of the view that the State Government was well within its power to fix a cut off date in respect of possession of minimum educational/training qualification by a candidate who participated in the recruitment process. The issue no. 1, as framed above, is decided against the petitioners.

ISSUE No.2

23. On the issue as to whether the cut off date 16.06.2016 violates any of the provisions of 1981 Rules, the contention on behalf of the petitioners had been that Rule 6 of 1981 Rules provided a cut off date in respect of age qualification of a candidate by providing that a candidate must have attained the age of Twenty one years and must not have attained the age of more than thirty-five years on the first day of July following the year in which the vacancy is notified, which provides guidance to the appointing authority that by the first day of July of the following year in which the vacancy is notified, the candidate should be possessed of all essential qualifications including minimum educational/training qualification and, therefore, fixation of a cut off date even before the date of advertisement is in violation of Rule 6 of the Rules, 1981.

In response to the above submission, on behalf of the respondents, it has been submitted that Rule 6 fixes a cut off date in respect of age and not in respect of possession of minimum educational/training qualification and therefore there is no prohibition under the Rules to fix a different cut off date for possession of minimum educational/training qualification.

24. Having noticed the submissions of the learned counsel for the parties on issue no.2 as also on perusal of the provisions of 1972 Act and the 1981 Rules, this Court finds that Rule 6 does not prohibit a separate cut off date for possessing educational/ training qualification by a candidate for being eligible to participate in a recruitment process than what is fixed for age qualification. Even otherwise, it would be logical to ensure that a candidate before applying possesses the requisite educational / training qualification because it is quite possible that a recruitment process may culminate before the first day of July of the following year in which the vacancy is notified therefore if, by that time, a candidate is not possessed of requisite educational/ training qualification the whole exercise of considering his candidature would be in vain and would only result in confusion. Therefore, Rule 6 of 1981 Rules cannot be considered as a determining factor while fixing a cut off date for possessing minimum educational/ training qualification. This court is thus of the considered view that there is nothing in 1981 Rules which may suggest that the cut off date 16.06.2016 is violative of 1981 Rules. The issue no.2 is also decided against the petitioners.

ISSUE No.3

25. Before deciding the issue whether the cut off date 16.06.2016 is arbitrary and discriminates persons similarly situated on no intelligible criteria or not, it would be useful to first examine the purpose for which a cut off date is fixed for determining eligibility of a candidate qua a recruitment process. The purpose of fixing a cut off date is to avoid uncertainty and to ensure that the employer is not flooded with applications of ineligible candidates. A cut off date for the purpose of determining the eligibility of candidates must therefore be fixed and in absence of any Rule or any specific date fixed in the advertisement, the last date for filling up of applications is to be treated as the cut off date for possessing eligibility qualification. In Bhupinderpal Singh and others v. State of Punjab and others : (2000) 5 SCC 262 , the Hon'ble Apex Court had deprecated the practice prevalent in the State of Punjab to determine the eligibility with reference to the date of interview. In paragraph 14 of its judgment, as per the report, the Apex Court had observed as follows:-

"14. In view of several decisions of this Court relied on by the High Court and referred to herein above, it was expected of the State Government notifying the vacancies to have clearly laid down and stated the cut off date by reference to which the applicants were required to satisfy their eligibility. This was not done. It was pointed out on behalf of the several appellants/petitioners before this Court that the practice prevalent in Punjab has been to determine the eligibility by reference to the date of interview and there are innumerable cases wherein such candidates have been seeking employment as were not eligible on the date of making the applications or the last date appointed for receipt of the applications but were in the process of acquiring eligibility qualifications and did acquire the same by the time they were called for and appeared at the interview. Several such persons have been appointed but no one has challenged their appointments and they have continued to be in public employment. Such a loose practice, though prevalent, cannot be allowed to be continued and must be treated to have been put to an end. The reason is apparent. The applications made by such candidates as were not qualified but were in the process of acquiring eligibility qualifications would be difficult to be scrutinised and subjected to the process of approval or elimination and would only result in creating confusion and uncertainty. Many would be such applicants who would be called to face interview but shall have to be returned blank if they failed to acquire requisite eligibility qualifications by the time of interview. In our opinion the authorities of the State should be tied down to the principles governing the cut off date for testing the eligibility qualifications on the principles deducible from decided cases of this Court and stated herein above which have now to be treated as the settled service jurisprudence."

26. At this stage, it would be useful to notice a judgment of a Division Bench of this court which was reversed by the apex court. In Alpana Vs. U.P. Public Service Commission and Another, (Writ No.18918 of 1991) decided on 17.03.1993, a Division Bench of this Court while considering the question of eligibility of candidate, who had not acquired the requisite qualification by the cut off date but had given examination for the same and was awaiting result, had observed that the declaration of result relates back to the date of the examination therefore the candidate would be deemed eligible on the cut off date. Upturning the decision of this court, the apex court in U.P. Public Service Commission, U.P. v. Alpana, (1994) 2 SCC 723, observed: We find it difficult to give recognition to such an approach of the High Court as that would open up a flood of litigation. Many candidates superior to the respondent in merit may not have applied as the result of the examination was not declared before the last date for receipt of applications. If once such an approach is recognised there would be several applications received from such candidates not eligible to apply and that would not only increase avoidable work of the selecting authorities but would also increase the pressure on such authorities to withhold interviews till the results are declared, thereby causing avoidable administrative difficulties. This would also leave vacancies unfilled for long spells of time. We, therefore, find it difficult to uphold the view of the High Court impugned in this appeal.

27. Now, it would be useful to notice the law as laid down by apex court in several judicial pronouncements in respect of the scope of judicial review when a challenge is made to a cut off date. In State of Bihar v. Ramjee Prasad, (1990) 3 SCC 368, while negativing a challenge to the cut off date fixed for possessing the requisite experience, the apex court observed as follows:

"8. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as January 31, 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as January 31, 1988 the State Government had only followed the past practice and if the High Court's attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix June 30 of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of anyone that experienced candidates were not available in sufficient numbers on the cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the government's action of fixing the last date for receipt of applications as January 31, 1988 as arbitrary."

(Emphasis Supplied)"

In Ramrao v. All India Backward Class Bank Employees Welfare Assn., (2004) 2 SCC 76, the apex court while considering a challenge to fixation of a particular cut off date observed as follows:

"Cut-off date"

29. It is now well settled that for the purpose of effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cut-off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. In the instant case, the cut-off date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be said to be arbitrary, irrational, whimsical or capricious.

30. The learned counsel could not point out as to how the said date can be said to be arbitrary and, thus, violative of Article 14 of the Constitution of India.

31. It is not in dispute that a cut-off date can be provided in terms of the provisions of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary it has been observed:

"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, and Sushma Sharma (Dr) v. State of Rajasthan)"

32. If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India.

33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date, but, the fact that some persons or a section of society would face hardship, by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution."

28. From the law noticed above a cut off date cannot be challenged merely because one comes within the wrong side of the cut off date. Whenever a cut off date is fixed some persons or a section of society would face hardship but that, by itself, cannot be a ground for holding the cut off date so fixed to be ultra vires Article 14 of the Constitution. A 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.

29. In these batch of writ petitions, what has been sought to be argued is that the State was through out aware that BTC training batch of the year 2013 had given their examinations in the month of May, 2016 and their results were not declared, therefore, the cut off date ought not to have been fixed in such a manner that they be excluded from consideration only because their results could not be declared by the date, so fixed. The argument on behalf of the petitioners is that by fixation of such cut off date, a large section of trained candidates has been excluded from consideration because under the circumstances only the BTC batch of the year 2011-12 would be brought within the zone of consideration and, therefore, the selection would not be broad based and would affect the quality of teachers appointed.

30. The above submission cannot be accepted for two reasons. Firstly, because BTC -2013 batch is of a subsequent year than the BTC 2011 and 2012 batches, therefore it is not a case where the cut off date creates a class within a class as has been suggested on behalf of the petitioners by placing reliance on several judgments which relate to fixation of cut off dates in respect of eligibility to pensionary benefits payable to already retired employees which constitute a single class. Secondly, it has not been demonstrated by the petitioners that sufficient number of qualified and trained candidates are not available for the posts. Accordingly, the challenge that the cut off date does not satisfy the test of intelligible differentia, cannot be accepted. Under the circumstances, the bald assertion that the cut off date has been maliciously fixed to cater to earlier batches has no legs to stand. Further, it cannot be said that the cut off date is wide off the mark. It is well within a month of the last date for submission of the application form and it correlates with the date on which permission was accorded by the State Government to fill up the vacancies that had been admittedly identified in the year 2015 as part of 19,948 vacancies.

31. At this stage, another submission made on behalf of the petitioners needs to be noticed which is that the 16448 posts of Assistant Teachers were not created by Government Order dated 16.06.2016 but were identified and approved by a Government Order dated 29th July, 2015 whereby 19,948 posts of Assistant Teacher in the Basic Schools were determined. It has been submitted that out of those 19,948, 3,500 posts were converted into that of Assistant Teacher (Urdu Language) by Government Order dated 14th December, 2015 and in respect of those 3,500 posts, the recruitment process was initiated on 05th January, 2016 in which the cut off date for possession of minimum educational/training qualification was the last date for submission of the application. It has, therefore, been submitted, on behalf of the petitioners, that there cannot be two different criteria for fixation of cut off date of eligibility in respect of vacancies that were identified and determined by a common notification.

32. The above submission on behalf of the petitioners cannot be countenanced because though 19,948 posts were identified and determined by Government Notification dated 29th July, 2015 but decision to fill up those vacancies was not taken and thereafter 3,500 posts of Assistant Teacher (Urdu Language) were segregated for which a recruitment process was initiated separately. From a bare reading of notification dated 29th July, 2015 it is clear that though the Government had identified and determined the vacancies but had declared that the vacancies would be filled in stages, as per need and budgetary support. Therefore, once 3500 posts were converted into posts of Assistant Teacher (Urdu Language) they constituted a separate class and recruitment on the said posts was also separately initiated by notification dated 5th January, 2016 whereas in respect of the posts concerning the present petitions by notification dated 16th June, 2016, a decision was taken by the State Government to fill up the posts.

33. There is another aspect to the matter which is that the fourth proviso to Rule 6 of 1981 Rules seeks to take care of the candidates who could not get appointed within the prescribed age limit because of non-availability of vacancy in the district after successful completion of a course of training prescribed for teachers of Basic Schools. The said proviso provides that where after successful completion of a course of training prescribed for teachers of Basic Schools, a candidate does not get appointed due to non-availability of vacancy in the district, the period he has remained unappointed shall not be counted for the calculation of his age provided he has not attained the age of more than fifty years on the date of appointment. The above provision reflects the legislative intent to ensure consideration of all trained candidates subject to a limit. Therefore, even if the cut off date fixed by the Government leans in favour of the earlier batches of BTC course that by itself would not be a ground to hold the cut off date as arbitrary keeping in mind the legislative intent behind the 1981 Rules as also that they form a separate class.

34. In view of the discussion made above, this Court is of the view that the cut off date 16.06.2016 suffers neither from the vice of arbitrariness nor it can be said that it discriminates similarly situated persons on no intelligible criteria. The issue no.3 is also decided against the petitioners.

35. In view of the conclusions drawn above, these writ petitions must fail and are accordingly dismissed.

Order Date :- 25.07.2016

Sunil Kr Tiwari