Delhi High Court
Ranveer Singh vs Union Of India And Ors. on 5 December, 2013
Author: V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on September 18, 2013
Judgment Delivered on December 05, 2013
+ W.P.(C) 6636/2011
PRADEEP ..... Petitioner
Represented by: Mr.Sanjay Ghose and Mohd.
Farrubh, Advocates
versus
UNION OF INDIA AND ANR. ..... Respondents
Represented by: Ms.Sweety Manchanda, CGSC
with Ms.Shruti Aggarwal and
Mr.Kartikey Mahajan, Advocates
+ W.P.(C) 2041/2012
RANVEER SINGH ..... Petitioner
Represented by: Mr.Rajender Yadav, Advocate
versus
UNION OF INDIA AND ORS. ..... Respondents
Represented by: Mr.S.M.Arif, Advocate
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J.
1. The aforesaid two writ petitions involve identical issue and with
the consent of counsel for the parties, are being disposed of by this
common order.
2. In the month of February, 2011, an advertisement was issued by
the respondent No.2 Staff Selection Commission (SSC) inviting
applications for recruitment to the post of Constables (GD) in the Central
Para Military Forces (CPMF) for the year 2011-2012 by holding an open
competitive examination on All India basis. Some of the relevant clauses
in the advertisement are as under:
"2. In view of the anticipated large number of
applicants, scrutiny of the eligibility and other
aspects will not be undertaken before the PST/PET
and Written Examination and, therefore, the
candidature will be accepted only provisionally.
Candidates are advised to go through the
requirements of educational qualification, age,
physical standards, etc. and satisfy themselves that
they are eligible for the posts, before applying.
Copies of supporting documents will be sought only
from those candidates who qualify for the medical
Examination. When scrutiny is undertaken after the
Written Examination, if any claim made in the
application is not found substantiated, the
candidature will be cancelled and the Commission's
decision in this regard shall be final."
xxxxx xxxxx xxxxx
4. (A) AGE LIMITS 18-23 years as on 01.08.2011.
Candidates should not have been born earlier than
02.08.1988 and not later than 31.07.1993.
Note I: The upper age limit is relaxable for SC, ST,
OBC, Ex-Servicemen and other categories of
persons in accordance with the Government orders
on the subject.
Note II: Candidates should note that only the Date
of Birth as recorded in the Matriculation/Secondary
Examination Certificate or an equivalent certificate
available on the date of submission of application
will be accepted by the Commission for determining
the age eligibility and no subsequent request for its
change will be considered or granted.
4. (B) Category-Codes and age relaxation available
to different category of eligible candidates, for
claiming Age Relaxation as on the date of
reckoning:
Code Category Age-Relaxation
No. permissible
beyond the Upper
age limit
01 SC/ST 5 years
02 OBC 3 years
09 Ex-Servicemen 03 years after
(Unreserved/General) deduction of the
military service
rendered from the
actual age as on the
date of reckoning
10 Ex-Servicemen 06 years (3 years +
(OBC) 3 years) after
deduction of the
military service
rendered from the
actual age as on the
date of reckoning
Note-II : The period of "Call up Service" of an Ex-
Serviceman in the Armed Forces shall also be
treated as service rendered in the Armed Forces for
purposes of age relaxation.
Note-III : For any serviceman of the three Armed
Forces of the Union to be treated as Ex-Serviceman
for the purpose of securing the benefits of
reservation, he must have already acquired, at the
relevant time of submitting his application for the
Post / Service, the status of ex-serviceman and / or
is in a position to establish his acquired entitlement
by documentary evidence from the competent
authority that he would complete specified term of
engagement from the Armed Forces within the
stipulated period of one year from the CLOSING
DATE (i.e. 04.03.2011)."
xxxxx xxxxx xxxxx
Note I: The closing date i.e. 04.03.2011 for receipt
of application will be treated as the date of
reckoning for OBC and creamy layer status of the
candidate.
Note II: Candidates are warned that they will be
permanently debarred from the examination
conducted by the Commission. In case they
fraudulently claim SC/ST/OBC/Ex-Servicemen
status.
5. ESSENTIAL QUALIFICATIONS as on
Closing Date i.e. 04.03.2011
Matriculation or X Class Pass from
recognized Board/University.
xxxxx xxxxx xxxxx
The Tentative Schedule for Recruitment is:
PST/PET : March to May, 2011
Written Examination : 5th June, 2011
Medical Examination : July-August, 2011
Declaration of Result : 31st October, 2011"
3. Writ Petition No.6636/2011 is concerned with the recruitment of
Constables in Border Security Force, Central Industrial Security Force,
Central Reserve Police Force and SSB. The petitioner was born on April
12, 1998. As on August 01, 2011 the petitioner was about 23 years and 4
months. He appeared in the Physical Efficiency Test (PET) and Physical
Standard Test (PST) in the month of April, 2011, which he had
successfully undergone. He also successfully cleared the written
examination held in the month of June, 2011. He was not called for
medical examination presumably because the respondent No.2 realized
that the petitioner was over-aged. The petitioner has filed this writ
petition challenging his rejection seeking the following reliefs:
"(a) Issue an appropriate writ, order or direction
declaring Clause 4 of the advertisement of the Respondent
No.2 ("age limits") (annexed as Annexure P-1) as
arbitrary, illegal, unjust and violative of Articles 14, 16, 19
and 21 of the Constitution of India insofar as the
respondent has fettered its discretion to permit relaxation
in deserving and harsh or anomalous cases.
(aa) Declare that the separate date set for age cut off in
the impugned advertisement is arbitrary, illegal, whimsical
and based on total non-application of mind being contrary
to government policies that are in place.
(b) Issue a writ of mandamus or any other appropriate
writ, order or direction directing, commanding and
requiring the respondents to forthwith conduct the medical
examination of the petitioner and to recommend the name
of the petitioner for appointment to the post of "Constable
(G.D.)" in one of central police organizations i.e. Central
Reserve Police Force (CRPF), the Border Security Force
(BSF) or Central Industrial Security Force (CISF) or
Sashtra Seema Bal (SSB).
(c) Direct, in the alternative, the Respondents to pay
compensation under public law to the petitioner for the
loss caused to him on account of the loss of career
opportunities and pain and suffering as a result of the
conduct of the respondents."
4. Writ Petition No.2041/2012 is concerned with recruitment to the
post of Constable in Indo Tibetan Border Police. The petitioner was born
on July 31, 1985 and was about 26 years and 1 day as on August 01,
2011. He is an OBC candidate and sought relaxation of 3 years in terms
of the instructions. He also appeared in Physical Efficiency Test (PET)
and Physical Standard Test (PST), written examination and medical
examination successfully. Thereafter it appears that the respondent No.2
detected that the petitioner is over-aged and accordingly issued letter
dated February 14, 2012 cancelling his candidature. In the writ petition
he has sought the following reliefs:
"(a) Issue an appropriate direction/order of writ of
certiorari to the respondents to give appointment to the
petitioner.
(b) Issue an appropriate direction/order of Mandamus to
respondents to make appointments to the post of Constable
(GD) to the petitioner.
(c) Issue an appropriate direction/order of Mandamus to
respondents to set aside office order dated 14.02.2012
issued by the respondents.
(d) Take the strict cognizance of partial, dishonest,
discrimination, corrupt practices in appointment in ITBP,
India.
(e) Any other appropriate writ, order or directions which
this Hon‟ble Court may deem fit just and proper in the
facts and circumstances of the case may kindly be passed
in favour of the petitioner.
(f) Writ Petition filed by the petitioner may kindly be
allowed with costs."
5. The respondents, on the other hand, contest the writ petitions
justifying their action in rejecting the candidature of the petitioners for
the sole reason that if a candidate is above age with/without relaxation he
being not eligible, could not be given any appointment.
6. We have heard the learned counsel for the parties.
7. Mr.Sanjay Ghose, learned counsel appearing in Writ petition
(Civil) No.6636/2011 has taken us through the relevant clauses of
advertisement as reproduced above. According to him even though the
cut off date for age limit has been prescribed as August 01, 2011 but for
other purposes like essential qualifications, the last date for receipt of
application, the date has been prescribed as March 04, 2011. According
to him, if March 04, 2011 has been prescribed for the purpose of
essential qualifications and for receipt of application then the cut off date
could not be August 01, 2011. He has also drawn our attention to the
Annexure P-2 „Rozgar Express‟ wherein the advertisement was also
published, a English translation of which is placed at page No.35, which
reveals the following against serial No.1.
„1. Age from 18 to 23 years on 04.03.2011. Age relaxation of 5
years to ST/SC, 3 years OBC and X-Serviceman and departmental
employees.‟
8. He has also drawn our attention to the format of application form
annexed by the respondents with their counter-affidavit, specifically
column No.13 wherein a candidate has to show his age as on normal
closing date i.e. March 04, 2011, to suggest that the respondents have
determined the March 04, 2011 as the date on which the age of candidate
must be seen. Moreover, the information as sought in column No.13 of
the application form and Rozgar Express did create confusion with
regard to the date for age,
9. The submissions of Mr.Sanjay Ghose would also include that in
the absence of any justification for prescribing August 01, 2011 as the
cut off date for prescribing age limit, the same is arbitrary and liable to
be quashed. He further takes support from the office memorandum dated
December 14, 1979 issued by the Government of India, Ministry of
Home Affairs/Ministry of Personnel and Administrative Reforms and a
letter dated July 04, 1998 of the Department of Personnel and Training,
Government of India to contend that if the examination is held in the first
half of the year then the cut off date for determining the age limit shall
be first day of January of the year in which the examination is held and if
the examination is held in the later half of the year then the 1 st August of
the year in which the examination is held. He would state that in the case
in hand since the examination was held in the first half of the year
inasmuch as the PST/PET was held before May, 2011, the written
examination was held on June 05, 2011 and the merit is determined after
the written examination, then 1st January should be the cut off date. This
submission of Mr.Sanjay Ghose is in alternative to the submission he has
made that the cut off date should be March 04, 2011. Mr.Sanjay Ghose
has primarily relied upon the judgments reported as (1997) 9 SCC 527
Raj Kumar & Ors. vs. Shakti Raj & Ors. and 39 (1989) DLT 330 Kanta
Rani & Ors. vs. Staff Selection Commission & Ors. in support of his
submissions.
10. Mr.Rajender Yadav, learned counsel appearing for the petitioner
in Writ Petition (Civil) No.2041/2012 apart from adopting the
submissions made by Mr.Sanjay Ghose has relied upon the judgment of
Bombay High Court in the case reported as Manu/MH/2056/2010 in
Writ Petition No.5380/2010 decided on December 03, 2010 Mrs.Mayuri
vs. Hon‟ble High Court of Judicature at Bombay & Anr., wherein it has
been held:
"In the case titled as Mrs. Mayuri W/o Harshal Deshuk vs.
Hon‟ble High Court of Judicature at Bombay and Anr.,
cited as Writ Petition No.5380 of 2010, wherein the
petitioner questions the administrative decision of the High
Court, rejecting the petitioner‟s application for the post of
Judge (Family Court), on the ground that she was less
than 35 years of age as on September 27, 2009, as she was
short of only 13 days to complete the age of 35 years as on
September 27, 2009. The Bombay High Court has held that
any candidate who fulfils minimum age criteria either on
date he submit applications or before last date fixed to
receive applications, shall be held eligible for that
particular event and thus allowed the petitioner and 2
other candidates to sit for the examination along with 750
candidates eligible candidates for the post of Judge
(Family Court).
11. On the other hand, Mr.S.M.Arif, learned counsel appearing for
respondents in Writ Petition (Civil) No.2041/2012 would submit that the
present petitions are not maintainable that too by the petitioners who
cannot challenge the advertisement after having appeared in the
examination. He would further submit that the respondents are justified
in prescribing the cut off date of August 01, 2011. According to him the
recruitment rules clearly stipulate that the cut off date shall be the one as
prescribed in the advertisement and since in the advertisement the
respondents have prescribed the date as August 01, 2011, this Court
should not interfere with the same. Apart from that, he would submit that
the eligibility of a candidate is not checked by the Staff Selection
Commission (SSC) at the initial stages. It is only after the written
examination before a candidate is called for medical examination that his
eligibility is seen. In the case in hand it was noticed that both the
petitioners were above age in normal course, and even after giving
relaxation with regard to writ petitioner in W.P.(C) No.2041/2012, and
the present petitions as such are liable to be dismissed.
12. Ms.Sweety Manchanda, learned counsel appearing for the
respondent in Writ Petition (Civil) No.6636/2011 made similar
submissions as were made by Mr.S.M.Arif. She justified the fixing of the
cut off date and relied upon the scheme issued by the Ministry of Home
Affairs on January 11, 2011, wherein it was decided to fix the cut off
date for age as August 01st of every year. According to her, it is pursuant
to this scheme that it was decided henceforth all the recruitment to be
made for constables in the Central Para Military Forces, the cut off date
shall be August 1st of every year.
13. We have considered the submissions made by the learned counsel
for the parties.
Plea of Maintainability
14. We have seen the judgment in the case of Raj Kumar & Ors.
(supra). Even though the same is not applicable in the facts of the present
case, but that would not effect the maintainability of the petitions. In that
case the primary argument which was dis-allowed was that a candidate
who has taken a chance and appeared in the interview and remained
unsuccessful, cannot turn around and challenge either the constitution of
the Selection Board or the method of selection as being illegal. Negating
such a plea the Supreme Court has held as under:
"Yet another circumstance is that the Government had not
taken out the posts from the purview of the Board, but after
the examinations were conducted under the 1955 Rules
and after the results were announced, it exercised the
power under the proviso to para 6 of 1970 Notification
and the posts were taken out from the purview thereof.
Thereafter the Selection Committee was constituted for
selection of the candidates. The entire procedure is also
obviously illegal. It is true, as contended by Shri Madhava
Reddy, that this Court in Madan Lal vs. State of J&K and
other decisions referred therein had held that a candidate
having taken a chance to appear in an interview and
having remained unsuccessful, cannot turn round and
challenge either the constitution of the Selection Board or
the method of selection. But in his case, the Government
have committed glaring illegalities in the procedure to get
the candidates for examination under the 1955 Rules, so
also in the method of selection and exercise of the power in
taking out from the purview of the Board and also conduct
of the selection in accordance with the Rules. Therefore,
the principle of estoppel by conduct or acquiescence has
no application to the facts in this case. Thus, we consider
that the procedure offered under the 1955 Rules adopted
by the Government or the Committee as well as the action
taken by the Government are not correct in law."
15. Here the petitioners are challenging the cut off date. The aspect of
cut off date is different from procedure of the selection. Selection
presupposes a candidate is eligible to apply, which is not the case here. It
is a settled law that cut off date can be challenged if the same is
arbitrary, capricious and discriminatory. This objection of Mr.Arif is
liable to be rejected.
16. In so far as the submission of Mr.Sanjay Ghose wherein he placed
reliance on the O.M dated December 04, 1979, is concerned, the same
are reproduced as under:
"OFFICE MEMORANDUM
Subject: Crucial date for determining age limits etc.
for competitive examination held by the
UPSC/SSC
As the Ministry of Defence etc. are aware, in
terms of this Department‟s O.No.2/66/71-Estt-D
dated 10.09.1975, the crucial date for determining
the age limits for appointment to posts filled
otherwise than through competitive examination is
the closing date for receipt of applications from
candidates in India (other than Andaman and
Nicobar Islands and Lakshadweep). In respect of
posts, the appointment to which are made through
the Employment Exchanges, the crucial date for
determining the age limit will in each case be the
last date upto which the Employment Exchanges are
asked to submit the names.
2. The question as to the crucial date that should
be prescribed for competitive examination held for
recruitment by the UPSC/SSC etc. has been
carefully considered in consultation with the UPSC
and it has been decided that the crucial date should
be:
(i) 1st day of January of the year in which the
examination is held if the examination is held
in the first half of the year; and
(ii) 1st day of August of the year in which the
examination is held, if the examination is held
in the later half of the year.
3. All Ministries are requested to take action to
amend the relevant Recruitment Rules or
regulations, in consultation with the UPSC
wherever necessary.
Sd/-
(J.K. Sharma)
Deputy Secretary to the Government of India"
17. Before us, reliance is also placed on Letter dated July 14, 1988
which reads as follows:
"Copy of letter No.AB.14017/70/87-Estt. (RR) dated
the 14th July, 1988 from Sh. M.V. Kesavan, Director
(E), Government of India, Ministry of Personnel, P.G.
& Pensions, Department of Personnel & Training,
New Delhi.
OFFICE MEMORANDUM
Subject: Crucial date for determining age limits for
competitive examinations conducted in parts
by the UPSC/SSC.
1. As the Ministry of Defence etc., are
aware, according to the instructions contained
in para 2 of this Department‟s O.M.
No.42013/1/79-Estt (D) dated 4th December,
1979, the crucial date for determining the age
limits for competitive examination held for
recruitment by UPSC/SSC etc. in the first half
of the year is the first day of January of the
year in which the examination is held, and if
the examination is held in the second half of
the year, the crucial date will be the first day of
August of the year in which the examination is
held.
2. Same doubts have been expressed as to
what should be the crucial date for determining
the age limits in respect of examinations which
are held in two parts on two different dates of
the year. For instance, the Preliminary
examination of the Civil Services Examination
is normally held in the first half of the year and
the Main examination is held in the second half
of the year. In this case the position has been
clearly indicated in the rules for this
examination that the later of the two dates
would be the crucial date. If however, both
parts of an examination fall in the first half of
the year, the crucial date for determining the
age limits will normally be the 1st of January,
similarly, if both part of an examination fall in
the second half of the year, the crucial date for
determining the age limits would be the 1st of
August. The position in this regard is clarified
in the following illustrations:-
Name of Date on Date on Date for
Examination which which determining the
first second age limits
part of part of (Minimum and
Exam. Exam. Maximum)
held Held
Exam A 1-3-88 22-8-88 As on 1-8-88
Exam B 1-9-88 1-3-89 As on 1-1-89
Exam C 1-3-88 1-5-88 As on 1-1-88
3. It may sometimes so happen that due to
exigencies of circumstances an examination,
which is normally held during the first half of
the year, is shifted to the second half. In such a
case, the date for determining the age limits
would still be the 1st of January. The exact
position should be clearly indicated in the rules
for the respective examinations, which are
notified for the purpose."
18. The aforesaid O.M/letter are specific where competitive
examinations are conducted by UPSC/SSC in a particular year. The
purport of the O.M/letter is where the examination i.e. preliminary and
main examination are held in the first half of the year, then the age
should be seen as on January 01st of that year. Similarly, if the
examination is held in the later part of the year then the 1st of August
would be the date to determine the age.
19. During the submissions, reliance was also placed on Office
Memorandum dated April 30, 2010 issued by the Ministry of Personnel
and Public Grievances & Pensions by which the DoP&T notified
Modern Recruitment Rules for Group „C‟ post in Pay Band-1 with Grade
Pay of `1800. The Annexure-1 to the said O.M which is a proforma of
the Modern Recruitment Rule, at the serial No.7 stipulates the age limit
for direct recruitment. Under the heading note, it is stated that the crucial
date for determining age limit shall be the closing date for receipt of
application from candidates.
20. During the course of submissions, we have called upon the
respondents to show the file in which decision was taken to fix the cut
off date as August 01st. The respondents have placed before us the file
wherein decision has been taken for modified scheme for common
recruitment of constables in Central Para Military Forces, which resulted
in the issuance of the scheme on January 11, 2011. We find that there is
no justification given with respect to the fixing of the date as August
01st.
21. The position of law in this regard is very clear. In a case reported
as AIR 1967 SC 1301 D.R.Nim vs. Union of India & Ors. the Supreme
Court has held that the cut off date can be regarded as arbitrary by the
Court if the same is one about which it can be said that it has been
„picked out from a hat‟.
22. In its opinion reported as (2008) 14 SCC 702 Government of A.P
vs. N.Subbarayudu the Supreme Court while dealing with the issue of
cut off date has held as under:
"7. There may be various considerations in the mind of the
executive authorities due to which a particular cut-off date
has been fixed. These considerations can be financial,
administrative or other considerations. The Court must
exercise judicial restraint and must ordinarily leave it to
the executive authorities to fix the cut off date. The
Government must be left with some leeway and free play at
the joints in this connection.
8. In fact several decisions of this Court have gone to the
extent of saying that the choice of a cut off date cannot be
dubbed as arbitrary even if no particular reason is given
for the same in the counter affidavit filed by the
Government, (unless it is shown to be totally capricious or
whimsical), vide State of Bihar vs. Ramjee Prasad, Union
of Indian v. Sudhir Kumar Jaiswal (vide SSC para 5),
Ramrao v All India Backward Class Bank Employees
Welfare Asson. (vide SCC para 31), University Grants
Commission v. Sadhana Chaudhary etc. It follows,
therefore, that even if no reason has been given in the
counter affidavit of the Government or the executive
authority as to why a particular cut off date has been
chosen, the Court must still not declare that date to be
arbitrary and violative of Article 14 unless the said cut-off
date leads to some blatantly capricious or outrageous
result.
9. As has been held by this Court in Aravali Golf Club v.
Chander Hass and in Govt. of A.P v. P. Laxmi Devi the
Court must maintain judicial restraint in matters relating
to the legislative or executive domain."
(Emphasis supplied)
23. In the judgment reported as (2011) 3 SCC 238 National Council
for Teacher Education & Ors. vs. Shri Shyam Shiksha Prashikshan
Sansthan & Ors., the Supreme Court after referring to its various
judgments has held as under:
"In State of Bihar v. Ramjee Prasad: (1990) 3 SCC 368,
this Court reversed the judgment of the Patna High Court
which had struck down the cut-off date fixed for receipt of
the application. After adverting to the judgments in Union
of India v. Parameswaran Match Works and U.P
Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan
Samiti, Varanasi v. State of U.P, the Court observed:
(Ramjee Prasad case, SCC pp. 373-74, para 8)
"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 31-1-1988.
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 31-1-1988 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 31-1-1988 to 30-6-
1988 is no reason for dubbing the earlier date
as arbitrary or irrational." (emphasis
supplied)
The same view was reiterated in Sushma Sharma (Dr.) v.
State of Rajasthan, UGC v. Sadhana Chaudhary, Ramrao
v. All India Backward Class Bank Employees Welfare
Assn. and State of Punjab v. Amar Nath Goyal.
If challenge to the cut-off dates specified in Clauses (4)
and (5) of Regulation 5 is examined in the light of the
propositions laid down in the above noted judgments, it is
not possible to find any fault with the decision of the
Council to prescribe 31st October of the year preceding
the academic session for which recognition is sought as
the last date for submission of application to the Regional
Committee and 15th May of the succeeding year as the
date for communication of the decision about grant of
recognition or refusal thereof."
(Underlining by us)
24. The Supreme Court in its another opinion reported as (2011) 8
SCC 269 Orissa Power Transmission Corporation Ltd. vs. Khageswar
Sundaray has held as under:
"We are of the considered opinion that the view taken by
the High Court that in the absence of any reason given by
the decision of the OSEB in its meeting held on 12.05.1973
to fix the cut-off date of 30.06.1971 for becoming a
graduate or passing the Accounts Examinations for an
employee to be entitled to the two advance increments, its
decision was arbitrary and discriminatory is not
sustainable in law. The OSEB as the employer was fully
with its powers to decide the cut-off date for the employee
to become a graduate or passing the Accounts
Examinations to be eligible to the two advance increments
in the revised scales of pay and the decision of the OSEB
could not be held to be arbitrary only because the reason
for decision was not stated in the proceedings of the
meeting of the OSEB in which the decision was taken.
This Court in State of Bihar and Ors. v. Ramjee Prasad
held: (SCC pp.373-74, para 8)
"8. ------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."
In a recent case in National Council for Teacher
Education v. Shri Shyam Shiksha Prashikshan Sansthan
this Court after referring to various earlier authorities on
the point in Sushma Sharma (Dr.) v. State of Rajasthan,
UGC v. Sadhana Chaudhary, Ramrao v. All India
Backward Class Bank Employees Welfare Association and
State of Punjab v. Amar Nath Goyal has reiterated this
position of law and has held the cut-off dates specified in
Clauses (4) and (5) of Regulation 5 of the National
Council for Teacher Education (Recognition Norms and
Procedure) Regulations, 2007 to be valid."
25. We would also like to refer to the observations of the Supreme
Court in the case reported as (1997) 6 SCC 614 Dr.Ami Lal Bhat vs.
State of Rajasthan. In this case the question arose was with regard to the
fixation of cut off date with respect to age of candidates. Most of the
relevant service rules provided that cut off date for deciding the
minimum age prescribed for a candidate for appointment will be 1 st day
of January. It was the case of the effected candidates that such a cut off
date which was uniformly fixed under all the service rules in the State
was arbitrary and unreasonable. The Supreme Court emphasised that
fixing of cut off date can be said to be arbitrary, if it is highly capricious
and whimsical. Further the Supreme Court observed as under:
"It was, however, strenuously urged before us that the only
acceptable cut off date is the last date for receipt of
applications under a given advertisement. Undoubtedly,
this can be a possible cut off date. But there is no basis for
urging that this is the only reasonable cut off date. Even
such a date is liable to question in given circumstances. In
the first place, making a cut off date dependent on the
lastdate for receiving applications, makes it more subject
to vagaries of the department concerned, making it
dependant 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 fail on the wrong side of such a cut off
date may well contend that the cut off date is unfair, since
the advertisement could have been issued earlier: Or in
the alternative that the cut off date could have been fixed
later at the point of selection or appointment. Such an
argument is always open, irrespective of the cut off date
fixed and the manner in which it is fixed. That is by
this court has said in the case of Union of India v.
Parameshwaran Match Works, (1975) 1 SCC 305 and
later cases that the cut off date is valid unless it is so
capricious or whimsical as to be wholly unreasonable. To
say that the only cut off date can be the last date for
receiving applications, appears to be without any basis. In
our view the cut off date which is fixed in the present case
with reference to the beginning of the Calendar year
following the date of application, cannot be considered as
capricious or unreasonable. On the contrary, it is less
prone to vagaries and is less uncertain."
26. In so far as the judgment of Kanta Rani‟s case (supra) as relied
upon by Mr.Sanjay Ghose is concerned, we find that this Court in the
said judgment had not gone into the question of arbitrariness of the cut
off date for the reason that in an earlier litigation before the Supreme
Court, the Supreme Court had left the question, as to whether High Court
could interfere with the advertisement fixing the date of eligibility, as
open. In fact, this Court observed that it is the Supreme Court, which
alone can decide whether the High Court could interfere with the
advertisement fixing the date of eligibility.
This Court in the facts of that case had granted relief to the
petitioners.
27. In so far as the judgment of the Bombay High Court in the case of
Mayuri‟s (supra) relied upon by Mr.Rajender Yadav is concerned, the
same would not be applicable in view of the judgment of the Supreme
Court reported as (2007) 4 SCC 54, wherein the Supreme Court held that
in the absence of any cut off date specified in the advertisement or in the
rules, the last date for filing the application must be considered as a cut
off date. In fact we do not see any relevance of the judgment in Mayuri‟s
case (supra) in the facts of this case.
28. In view of the legal position narrated above, we are of the view
that the cut off date of August 01st fixed by the respondents for
determining the age cannot be interfered with as fixing of the cut off date
is primarily for the executive to determine and Court should not
normally interfere unless the fixation of such a cut off date is blatantly
discriminatory and arbitrary. Nothing has been shown to us that the
fixing of the cut off date as August 01st is discriminatory and arbitrary.
29. In so far as the submission of Mr.Sanjay Ghose that the
information sought for in column No.13 of the application form and the
advertisement in the Rozgar Express wherein it was mentioned "age
from 18 to 23 on 04.03.2011" has created confusion is untenable. Since
we have upheld the cut off date of August 01, it is clear that the
petitioners were over-aged and were not eligible to even apply for the
post in question.
30. We find no merit in the writ petitions. The same are accordingly
dismissed.
31. No costs.
C.M No.13401/2011 in W.P.(C) 6636/2011
C.M No.4431/2012 in W.P.(C) 2041/2012
Dismissed as infructuous.
(V.KAMESWAR RAO)
JUDGE
(GITA MITTAL)
JUDGE
December 05, 2013
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