M. M. Kumar, CJ.:-- These two appeals* under Clause 12 of the Letters Patent are directed against common judgment and order dated 17.02.2012 rendered by the learned Single Judge in SWP No. 526/ 2011 and SWP No. 547/2011. 2. A short question of law which arises for consideration of this Court is whether the appointment of the private respondents in preference to the appellant-writ petitioners, who have equal merit with the private respondents, on the criterion of older in age is valid. 3. The learned Single Judge has found that in cases where there is a tie between the selected candidates then the criteria of older in age may be valid and objective criteria which would not violate Article 14 and 16 (1) of the Constitution. The argument that the appellants-writ petitioners were placed in the select list on the basis of order in the merit was rejected by the learned Single Judge and the explanation tendered by the respondents has been accepted to the effect that the select list was prepared on the basis of roll numbers. The view of the learned Single Judge is discernable from Para 10 and 11 of the impugned judgment, which is set out below:- "1O. The selection process was initiated way back in the year 2007. The selection list was published in the year 2010 and selection list/waiting list was exhausted by appointing the candidates figuring therein in the year 2011. It is pertinent to mention here that selection process, in most of the cases, is very cumbersome and takes years together to culminate in appointing the selected candidates on the notified posts. In order to vitiate the selection and appointment of the candidates, there would require to be very strong and cogent reasons to be projected by the persons who challenge such selection/appointment. In the writ petitions on hand, selection of the appointed candidates is not in question. What is in question is their appointment, that too, on the ground that they figure down below in the selection list/waiting list than the petitioners and the norm, which was fixed for offering appointment to them, could not have been fixed at the conclusion of selection process or that some other norm could have been fixed other than the one on the basis of which the private respondents have been appointed. The petitioners are beneficiaries of the selection process.
The petitioners are beneficiaries of the selection process. They figure in the waiting list, where, admittedly, they were placed higher than the private respondents. However, as explained by the official respondents, which explanation is accepted by the Court, the 'petitioners and private respondents were not placed on the waiting list in order of merit but their placement took place on the basis of the role numbers assigned to them. The selection process has taken almost four years in reaching to its culmination. The petitioners and the private respondents had equal merit. The respondent competent authority, in order to ensure that the selection process undertaken does not get derailed, decided to appoint the candidates figuring in the waiting list and in the case of those candidates who had secured equal merit, it was decided that the candidates being older in age be offered appointment. It is pleaded in the writ petitions and also submitted at the bar that this norm was adopted to accommodate the private respondents. This is a general allegation levelled in the pleadings. In order to plead mala fides, the petitioners are required to give details as to how and for what reason and under which circumstance; a reasonable person would come to a conclusion that for mala fide reasons, the norm aforementioned has been adopted. The general allegation would not cater to such requirement. Even otherwise, the fixing of norm of offering appointment to the person/s with older age appears to be reasonable in the facts and circumstances of these cases, because such person/s would lose chance of competing another time to seek selection/appointment in Government service. A candidate with lesser age would get further chances and opportunities to seek consideration/or being selected/ appointed on any post even at a later stage. 11. Admittedly, the appointments to the private respondents have not been offered to them only on the ground of they being older in age than the petitioners. The merit between the petitioners and the private respondents was equal. The appointment is not, thus, offered to a person with lesser merit because in such circumstance, the appointments may stand vitiated in the eyes of law. The Hon'ble Supreme Court in the aforementioned case has also upheld the course adopted in the like manner". 4.
The merit between the petitioners and the private respondents was equal. The appointment is not, thus, offered to a person with lesser merit because in such circumstance, the appointments may stand vitiated in the eyes of law. The Hon'ble Supreme Court in the aforementioned case has also upheld the course adopted in the like manner". 4. We have heard the learned counsel for the parties and are of the view that the opinion expressed by the learned Single Judge does not suffer from any legal infirmity warranting interference of the Letters Patent Bench. It has not been disputed that the merit of the appellants-petitioners was equal to that of the private respondent Nos. 3, 4 and 5. In order to adopt an objective criteria the respondents have preferred to appoint a candidate who is older in age in preference to the younger one. When we examine the aforesaid criteria on the touch stone of Article 14 and 16(1) of the Constitution, we find that there is no arbitrariness in the criteria of picking up the older person for appointment in preference to the younger one in case of tie. The justification for picking up older person of equal merit may be that he is mature and may prove more responsible then the younger person. There are provisions in many statutory rules governing different services which provides for preference to the older person in service matters. There is a rational basis with the object sought to be achieved by the criteria of preferring older person in case of a tie. 5. Mr. Z. A. Qureshi, learned counsel for the appellant-petitioner has sought to argue that after the completion of selection process it is not permissible to change the rule. In support of his submission he has placed reliance on a judgment of the Hon'ble Supreme Court in the case of Madan Mohan Sharma and anr v. State of Rajasthan and ors, AIR 2008 SC 1657 . However, we are unable to accept the aforesaid contention because the aforesaid judgment rendered by the Hon'ble Supreme Court is not applicable to the facts of the case in hand. There the conditions of qualification was relaxed after the selection was over by changing the rule.
However, we are unable to accept the aforesaid contention because the aforesaid judgment rendered by the Hon'ble Supreme Court is not applicable to the facts of the case in hand. There the conditions of qualification was relaxed after the selection was over by changing the rule. Naturally if the rule has been changed midstream during the selection process by giving relaxation in qualification then all those who become eligible because of the amendment would become entitled for consideration for appointment. It would thus call for issuance of fresh advertisement notice inviting applications in accordance with the qualification incorporated by amendment of the Rules. 6. In the case in hand the situation is entirely different. On the basis of merit the appellants-petitioners as well as the private respondents have secured the same marks. The question before the Court is how to break the tie. In the instant case a criteria has been devised by preferring the persons for appointment who are older in age then their younger counterparts, therefore, the aforesaid judgment has no bearing on the question of law raised in this appeal. 7. Accordingly, the appeals fail and the same are dismissed. 8. A copy of this order be placed on record of each concerned file. __________