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2002 DIGILAW 253 (JK)

Public Service Commission J&K v. Anil Sharma

2002-08-07

S.K.GUPTA, V.K.JHANJI

body2002
Per : S.K. Gupta, J. Heard Mr. D. C. Raina, learned advocate for the Appellant as well as M/s Sunil Sethi and J.P. Singh, learned advocates for the respondents, in extenso. 2. This appeal arises out of a decision of learned Single Judge dated 25th March, 1998 in OWP No. 733 /1995. By the aforesaid judgment and order, the learned Single Judge allowed the writ petition and permitted the petitioner to take part in the examination at his own risks and responsibilities and to be well within his right to take part in the process of further selection, and directed the authorities to make arrangements to interview the writ petitioner, in case the interview process has come to an end. 3. Pursuant to a notification SRO-161 dated 17-7-1995 issued by the State Government in exercise of its Constitutional powers under Section 124 of the Constitution of Jammu and Kashmir notifying the rules for the purpose of making selection of eligible candidates as direct recruits on the basis of a Combined Competitive Examination, Appellant-Public Service Commission published an advertisement vide Notification No. PSC/ Ex-95/59 dated 14-9-1995 inviting applications from the eligible candidates for appearing in the Competitive Examination. The notification prescribed the condition of age as per SRO-161 of 1995 reflected therein as age of a candidate as on 1-1-1995 should be minimum 21 years and maximum 35 years. The writ petitioner also submitted his application. His application, however, was not entertained for not qualifying the age eligibility as transcribed in the advertisement notification. 4. Aggrieved by the action of the Appellant-Public Service Commission in rejecting the candidature of the writ petitioner being under aged in terms of the SRO-161 read with Notification dated 14-9-1995, he approached this Court by a writ of certiorari for quashing condition No.5(ii) of SRO-161 dated 17-7-95 fixing minimum age of a candidate as 21 years as on Ist January, 1995. An interim direction was given on 18th October, 1995 by the Court directing the application of the writ petitioner to be entertained and permitted him to take part in the Examination. The result of the petitioner, however, was declared under the Court directions dated 11th July, 1996 on a Miscellaneous Petition filed by the writ petitioner. The petitioner was further allowed to participate in the Main Examination on a Court direction dated 31st December, 1997 and his result declared. The result of the petitioner, however, was declared under the Court directions dated 11th July, 1996 on a Miscellaneous Petition filed by the writ petitioner. The petitioner was further allowed to participate in the Main Examination on a Court direction dated 31st December, 1997 and his result declared. The petitioner after having qualified in the Main Examination awaited for the interview, when by impugned judgment, the petition was allowed and the petitioner was permitted to participate in the process of further selection and directed to be interviewed by the respondent-authorities, which became the subject matter of challenge before this Letters Patent Bench. 5. The sole controversy that centres around in a narrow compass in this case is the minimum age prescribed in SRO-161 of 1995 and reflected in Notification dated 14-9-1995, Mr. D.C. Raina, learned advocate appearing for the appellant, vehemently urged that since State Government has issued SRO-161 of 1995 prescribing minimum and maximum age eligibility for the Combined Competitive Examination, Notification published in inviting applications was issued strictly according to the rules and regulations and conducted the Examinations accordingly. Respondent.-Writ petitioner was under-aged as per Notification and was found not competent, which entailed rejection of his candidature for appearing in preliminary test. His further contention is that the writ Court, without declaring the rules either ultra-vires or bad in law, allowed the writ petition, notwithstanding the relevant rules and regulations governing the minimum and maximum age limits for the purpose of participation in the Combined Competitive Examination. Having known the legal parameters within which we have to function, it is to be seen whether fixation of Ist January, 1995 as cut off date for determining the eligibility of the applicants qua their age can be held to be arbitrary. The condition of age eligibility is prescribed in Rule 5(ii) of SRO-161 of 1995. For the sake of convenience Rule 5(ii) is reproduced hereunder : "5. Condition of eligibility: In order to be eligible to compete in the examination, a candidate must satisfy the following conditions, namely :- (i) .... (ii) Must have attained the age of 21 years and not attained the age 28 years as on Ist January of the year in which notification inviting applications is issued by the Commission." 6. Condition of eligibility: In order to be eligible to compete in the examination, a candidate must satisfy the following conditions, namely :- (i) .... (ii) Must have attained the age of 21 years and not attained the age 28 years as on Ist January of the year in which notification inviting applications is issued by the Commission." 6. A plenary reading of the aforesaid Rule makes it explicit that age eligibility provided for an applicant to participate in Combined Competitive Examination is that, he must be of the age of 21 years on Ist January of the year in which notification inviting applications is issued by the Commission. This notification is dated 14-9-1995. The minimum age requirement for participation in the Examination as on 1-1-1995, as condition of eligibility, was 21 years clearly indicated in the notification pursuant to SRO-161 of 1995 issued by the Government in exercise of the powers under Section 124 of the Constitution of Jammu and Kashmir. As per the notification, the last date for submission of the forms was 31st October, 1995 and the Examination was to be held thereafter. The Examination was held in the year 1996. 7. Mr. Sethi, learned counsel appearing for respondent-1, submitted that the petitioner cannot be made ineligible on account of all the conditions specifying the minimum and maximum age in Rule 5(ii) of the Annexure to SRO-161 dated 17-7-1995. His further contention is that, Service Rules should be taken into consideration for determining the age eligibility. 8. The cut off date in this case has been fixed by the State of Jammu and Kashmir under its Rules related to various services with reference to Ist January of the year in which notification inviting applications is issued by the Commission (Ist January, 1995 in this Case). The similar controversy came up for consideration before, the Apex Court in Dr. Ami Lal Bhat v. State of Rajasthan & Ors., AIR 1997 SC 2964 and it was held as under :- "This contention in our view is not sustainable. In the first place the fixing of a cut off date for determining the maximum or minimum age prescribed for a post is not per se, arbitrary. Ami Lal Bhat v. State of Rajasthan & Ors., AIR 1997 SC 2964 and it was held as under :- "This contention in our view is not sustainable. In the first place the fixing of a cut off date for determining the maximum or minimum age prescribed for a post is not per se, arbitrary. Basically, the fixing of a cut off date for determining the maximum or minimum age required for a post, is in the discretion of the Rule-making Authority or the employer as the case may be, one must accept that such a cut off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut off date is fixed there will be some persons who fall on the right side of the cut off date and some persons who will fall on the wrong side of the cut off date. That cannot make the cut off date per se arbitrary unless the cut off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. M/s. Parameshwaran Match Works, AIR 1974 SC 2349 and has been reiterated in subsequent cases ......" "..........The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications." This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut off date should be with reference to a fixed date. Therefore, fixing an independent cut off date; far from being arbitrary, makes for certainty in determining the maximum age." Further, the Apex Court held : "In the case of Union of India v. Sudhir Kumar Jaiswal (1994) 4 SCC 212 : (1994 AIR SCW 2666) the date for determining the age of eligibility was fixed at Ist of August of the year in which the examination was to be held. At the time when this cut off date was fixed, there used to be only one examination for recruitment. At the time when this cut off date was fixed, there used to be only one examination for recruitment. Later on, a preliminary examination was also introduced. Yet the cut off date was not modified. The Tribunal held that after the introduction of the preliminary examination the cut off date had become arbitrary. Negativing this view of the Tribunal and allowing the appeal, this Court cited with approval the decision of this Court in Parmashwar Match Works case (supra) and said that fixing of the cut off date can be considered as arbitrary only if it can be looked upon as so capricious or whimsical as to invite judicial interference. Unless the date is grossly unreasonable, the Court would be reluctant to strike down such a cut off date." 9. Such a cut off date fixed by the Government under the relevant Rules can neither be said to be arbitrary nor capricious. Such a date in not so wide off the mark as to be construed unreasonable or grossly arbitrary. The time gap between advertisement and the cut off date is less than a year. It is, however, strenuously urged by Mr. Sunil Sethi that lower age is always taken with reference to the year of Examination, as against the cut off date of the year in which notification inviting applications is issued by the Commission under a given advertisement. According to him, this can undoubtedly be a possible cut off date. But there is no basis, in our view, for urging that this is the only reasonable cut off date. Even such a date, is liable to question in given circumstances. A person who may fall on the wrong side of the cut off date may contend that the cut off date is unfair, since the advertisement has been issued earlier; or in the alternative that the cut off date could be fixed later at the time 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 why the Apex Court in Parameshwaran Match Works (AIR 1974 SC 2349) (supra) has said that the cut off date is valid unless it is so capricious or whimsical or it is wholly unreasonable. Such an argument is always open irrespective of the cut off date fixed and the manner in which it is fixed. That is why the Apex Court in Parameshwaran Match Works (AIR 1974 SC 2349) (supra) has said that the cut off date is valid unless it is so capricious or whimsical or it is wholly unreasonable. To say that the only cut off date can be with reference to the year of Examination or the last date of receiving applications, appears to be without any basis. In our view, cut off date which is fixed in the present case with reference to the beginning of the calendar year in which notification inviting applications is issued cannot be considered as capricious or unreasonable. Apart from that, when cut off date is fixed by Rules applicable specifically to the relevant services, General Rule, if any, will not be applicable. The source of this Rule, SRO-161 of 1995 prescribing the maximum and minimum age on cut off date, i.e., Ist of January of the year in which notification inviting applications, is issued by the Commission also emanates from the powers conferred on the State under Section 124 of the Constitution of Jammu and Kashmir. Determining the maximum or minimum age for a post, for the sake of repetition, is in the discretion of the Rule-making Authorities such empowered, as the case may be. Reliance placed by Mr. Sunil Sethi on Rule 37 of General Rules, in the facts and circumstances of the case, to support his contention and augment the debate, is misconceived and cannot sustain. For facility of reference, Note 7 to Rule 37 is quoted as under : "Note 7.- In the case of initial appointment to Government Service made on the recommendations of the Recruitment Boards, Public Service Commission, or any selection Committee, the limitations of minimum and maximum age as contained in Article 37, shall be observed with reference to first day of January in which the advertisement notice for the post(s) is issued. This shall also apply to pending cases if any." 10. A plenary reading of the notification, placed on record, inviting applications for preliminary & Combined Competitive Examination based on SRO-161 of 1995, makes it apparent that the minimum age of 21 years should be there as on Ist January of the year in which notification inviting applications is issued. This shall also apply to pending cases if any." 10. A plenary reading of the notification, placed on record, inviting applications for preliminary & Combined Competitive Examination based on SRO-161 of 1995, makes it apparent that the minimum age of 21 years should be there as on Ist January of the year in which notification inviting applications is issued. The Examination in this case was to commence in March 1996. The petitioners date of birth is 9th March, 1974. He attained age of 21 years on 19th March, 1995. He was clearly ineligible qua his age on cut off date, as prescribed in the notification. The Rules for the Combined Competitive Examination have been framed by the Government in issuing an SRO-161 of: 1995 on 17th. July, 1995. The minimum age provided for a candidate to participate in the selection process (for submitting an application) is 21 years on Ist of January of the year in which notification inviting applications is issued under Rule 5 (ii). This Rule read in conjunction with Rule 37 of the Jammu and Kashmir Civil Services Regulations makes it clearly manifest that the age prescribed is with reference to the Ist day of January of the year in which the advertisement notice is issued. In SRO-161, the Rules framed are for holding of Combined Competitive Examination for specified services therein indicating the minimum and the maximum age on a cut off date, which manifestly exclude these services from the ambit of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. The intent of the Rule-making Authority or the Appointing Authority is indisputably gatherable from the Rules made for the specified services qua their minimum or maximum age prescribed on a cut off date, viz., Ist January of the year in which notification inviting applications is issued by the Commission. 11. The fixation of Ist January of the concerned year when notification inviting applications for Combined Competitive Examination as date with reference to the applicability of the applicant qua age is to be determined by the authority depends on several factors. 11. The fixation of Ist January of the concerned year when notification inviting applications for Combined Competitive Examination as date with reference to the applicability of the applicant qua age is to be determined by the authority depends on several factors. Merely because the respondent-writ petitioner would qualify for submission of form and process of selection, if the cut off date with reference to the age is shifted from Ist January of the year of notification inviting applications to the Ist January of the year of Examination is no reason for dubbing the earlier date as arbitrary and irrational, is the view expressed by the Apex Court in State of Bihar & Ors. v. Ramjee Prasad and others, AIR 1990 SC 1300. The writ petitioner therefore, cannot be held eligible for Combined Competitive Examination being under-age as per the eligibility criteria specified in the notification inviting applications for the purpose of such Examination based on the Rules framed by the Rule-making Authority in issuing SRO-161 dated 17-7-1995 in exercise of its Constitutional authority flowing from Section 124 of the Constitution of Jammu and Kashmir. The view expressed by the learned single Judge under the facts and circumstances of the case, in our view, is not legally sustainable. 12. In the result, we allow the appeal, set aside the impugned decision of the learned Single Judge and the writ petition, which has given rise to this appeal, will stand dismissed with no order as to costs throughout.