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2009 DIGILAW 1225 (KER)

Jiji Vijayan v. Kerala Public Service Commission

2009-12-22

T.R.RAMACHANDRAN NAIR

body2009
Judgment : The petitioners who are applicants to the post of Lecturer in various subjects in the Collegiate Education Department, are aggrieved by the fixation of the date 1.1.2007 in Ext.P1 notification for calculation of age for enabling the candidates to submit application to the post in question. Accordingly, they are seeking for a direction to accept the applications by calculating their age with reference to 1.1.2008. The circumstances leading to the filing of the writ petition are the following: 2. All the petitioners are Post Graduates having passed M.A. (Economics) Degree Examination in May, 2007. Ext.P1 notification is dated 12.12.2007. As per Ext.P1, the candidates should have completed 22 years of age and should not exceed 35 years of age on 1.1.2007. All the petitioners are having U.G.C. and N.E.T. qualifications also. Exts.P2 to P17 are produced in support of the acquisition of qualifications by the petitioners. The petitioners undertook the examination for M.A. Degree in May, 2007. The last date prescribed for submission of application was 16.1.2008. It is therefore contended that the prescription of cut off date for calculation of age as 1.1.2007 is arbitrary. It is further pointed out that among them, petitioners 1, 3 and 4 are First, Second and Third Rank holders respectively in M.A. Economics Degree Examination and if opportunity is denied by way of a notification like Ext.P1, the petitioners who are having brilliant academic background, will not get due consideration. 3. On behalf of the Public Service Commission, a detailed counter affidavit has been filed supporting the notification. It is pointed out that the same is in tune with the Special Rules in force. It is also in tune with the Public Services (Date for determination of age for eligibility for appointment) Rules, 1977. 4. As per the interim order, this Court directed the respondents to accept the applications of the petitioners provisionally subject to the result of the writ petition. The petitioners have appeared for the written test also. 5. The crucial question, therefore, is whether the notification is in any way arbitrary or illegal. The Special Rules, viz. Special Rules for Kerala Collegiate Education Service, 1994, contains a provision regarding age. Rule 4 of the said Rules is extracted below: "4. The petitioners have appeared for the written test also. 5. The crucial question, therefore, is whether the notification is in any way arbitrary or illegal. The Special Rules, viz. Special Rules for Kerala Collegiate Education Service, 1994, contains a provision regarding age. Rule 4 of the said Rules is extracted below: "4. Qualification regarding age.--No person shall be eligible for appointment by direct recruitment to any of the posts if he has not completed 22 years of age or is above 35 years of age on the first day of January of the year in which the applications for appointment are invited. Usual relaxation in upper age limit shall be allowed to candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes." The other rule relevant is Rule 2 of Public Services (Date for determination of age for eligibility for appointment) Rules, 1977, which provides as follows: "2. Date for determination of age for eligibility for appointment to Public Services.-With effect on and from the commencement of these rules, the Special Rules for the various State Services and Subordinate Services, in force at such commencement, shall stand modified as if the date specified in those Special Rules for determination of the age for eligibility for appointment to posts included in the various services had been modified as the 1st January of the year in which applications for appointment to such posts are invited. Provided that nothing in this rule shall apply to any appointment to be made in pursuance of any notification inviting applications, published before the commencement of these rules." 6. Therefore, going by these two rules, the age has to be reckoned as the 1st January of the year in which application is invited. Herein, learned counsel for the petitioner raised the following argument: The act of inviting the application will be completed only on the last day fixed for receipt of the application. Therefore, till then it is open for every one of the candidates to submit an application. Therefore, the question will have to be understood in the light of the position available as on the last date of receipt of application, which was originally 16.1.2008 and it was later extended to 30.1.2008, as per Ext.P22. Learned counsel for the petitioner laid emphasis on the word "invited" in the rules to contend that it will be complete only by submission of applications by the candidates. Learned counsel for the petitioner laid emphasis on the word "invited" in the rules to contend that it will be complete only by submission of applications by the candidates. 7. Learned Standing Counsel for the Commission submitted that what is crucial is the year in which the application is invited, viz. by way of the notification. Therefore, the year in which the notification is published, is the relevant year and 1st January of that year is liable to be taken as the crucial date. It is pointed out that if the argument of the learned counsel for the petitioner is accepted, then there will be another consequence in that those candidates who have submitted applications based on the upper age limit provided, will be put to hardship, as the same will cause disadvantage to them. They will not be able to apply. 8. Going by the rules, it is evident that it is the 1st January of the year in which the application is invited which determines the age of eligibility. Normally a decision will be taken by the appointing authority to fill up various posts as the first step. In this case, the Commission is the body which selects the candidates. The appointing authority will have to send requisition to the Commission to notify the post. Therefore, the notification is the culmination of the procedure in terms of the Public Services Act and the procedure prescribed in the Rules governing the matter. Therefore, the act of inviting the candidates to submit the application is indicated by the publication of the notification. Once the notification is published, the process starts. Therefore, the year in which the notification is published, is the relevant aspect to be considered. Otherwise, it will create practical difficulties and different consequences will follow. 9. Herein, learned counsel for the petitioners submitted that there are only few instances where the process of invitation of the applications and the last date may fall in two different years and therefore, this case is an exceptional one. It is therefore submitted that the benefit should go to the candidates. It cannot be disputed that there should be some definiteness in the matter of selection of candidates and the selection procedure. The Commission or the appointing authority cannot relax the standards by taking into consideration individual hardships. It is therefore submitted that the benefit should go to the candidates. It cannot be disputed that there should be some definiteness in the matter of selection of candidates and the selection procedure. The Commission or the appointing authority cannot relax the standards by taking into consideration individual hardships. Of course, if the criteria is implemented in its full force, there may be cases of hardship which may affect certain candidates in even submitting the application. But still, unless there is provision to relax such conditions in the notification, supported by anything in the statutory rules, normally no relaxation also is possible. Any selection for appointment in public employment should be in conformity with the principles of Article 16 of the Constitution of India also. 10. In this regard, learned Standing Counsel for the Commission relied upon a decision of a Division Bench of this Court in W.A. No.595/2006. The facts of the case show that the notification was published in the year 2004 and the application of the appellant was rejected on the ground that he did not attain 23 years of age prescribed in the Special Rules, as on 1.1.2004. After considering the effect of the rules which are similarly worded, the Division Bench expressed the view in para 4 thus: Date for eligibility is dealt with in Rule 2 of the Public Services (Date for determination of age for eligibility for appointment) Rules, 1977. Rule 2 of the said Rules is extracted below for easy reference: xxxxxxxxxx When we read Rule 5 of the Kerala Vocational Higher Secondary Education State Service Rules 2004 along with Rule 2 of the Public Services (Date for determination of age for eligibility for appointment) Rules, 1977 it is clear that the age limit fixed for the posts mentioned in the notification is as on 1st January of the year in which applications for appointment to the posts are invited. Rule 2 of the Public Services (Date for determination of age for eligibility for appointment) Rules is not in conformity with Rule 5 of the Special Rules has not been challenged. Rule making authority is conferred with the power to fix the age limit as well as the qualification. Rule 2 of the Public Services (Date for determination of age for eligibility for appointment) Rules is not in conformity with Rule 5 of the Special Rules has not been challenged. Rule making authority is conferred with the power to fix the age limit as well as the qualification. Special Rules, 1977 specifically state that no person shall be eligible for appointment to public service if he has not completed the minimum age or if has completed the maximum age as on the first day of January in which applications for appointment to the posts were invited. Admittedly, petitioner had not completed the age of 23 years as on 1.1.2004. He completed 23 years on 10.6.2004. Since the petitioner had not completed 23 years of age as on 1st January of the year in which applications for appointment to the posts are invited, he was not eligible to apply for the post." 11. The said dictum can be profitably applied to the facts of this case also to interpret the particular provision in the Special Rules and the rules relied upon by the learned Standing Counsel for the Commission. If that be so, it can be definitely found that the year in which the application is invited, is important to consider the date of coming into force of the notification. Herein, the application was invited in the year 2007. True, that the last date for submission of applications fell in the year 2008. "Year" means the period from 1st January to 31st December, both days inclusive. But for the purpose of calculating the age, as the year in which the application is invited, viz. the year of issuance of the notification is relevant, the argument that the petitioners can apply as they will cross the age of 22 as on 1st January, 2008, cannot be accepted. 12. Learned counsel for the petitioners then submitted that since the petitioners have been allowed to participate in the selection process and in the light of the academic brilliance of the petitioners, their case should be considered differently and a direction may be issued to accept their candidature. True that they have been allowed to participate in the selection process, but only subject to the outcome of the writ petition. The interpretation sought for, is about a general condition in the notification. True that they have been allowed to participate in the selection process, but only subject to the outcome of the writ petition. The interpretation sought for, is about a general condition in the notification. Therefore, equitable principle may not apply in such cases and this Court will not be justified in directing the respondents to accept the candidature of the petitioners by relaxing the age limit shown in the notification. Therefore, the writ petition fails and the same is dismissed.