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Madhya Pradesh High Court · body

2014 DIGILAW 1024 (MP)

Santosh Choubey v. State of M. P.

2014-08-19

M.C.GARG, SHANTANU KEMKAR

body2014
ORDER Kemkar, J. -- 1. By filing this petition under Article 226 of the Constitution of India, the petitioner has challenged the vires of Rule 8 (1) (a) of Madhya Pradesh Education Service (Collegiate Branch) Recruitment Rules, 1990 (for short, Rules of 1990) so far as it fixes the first day of January next following date of commencement of the examination / selection, as the date for determining the eligibility of the candidates with respect to his/her age. 2. For better understanding, Rule 8 (1) of the Rules of 1990 is extracted below: - “8. Conditions of eligibility of direct recruits. - In order to be eligible to complete at the examination / selection a candidate must satisfy the following conditions, namely: - (i) Age. - (a) The candidate must have attained the age as specified in column (4) of the Schedule III and not attained the age as specified in column (5) of the said schedule on the first day of January next following the date of commencement of the examination/selection : (b) The upper age limit shall be relaxable upto a maximum of 5 years if a candidate belongs to a Schedule Caste or a Scheduled Tribe; (c) The upper age limit will also be relaxable in respect of candidates who are or have been employees of the Madhya Pradesh Government to the extent and subject to the conditions specified below: - (i) A candidate who is a permanent Government Servant should not be more than 38 years of age. (ii) A candidate holding a posts temporarily and applying for another post should not be more than 38 years of age. This concession shall also be admissible to the teachers appointed on emergency basis, contingency paid employees. Work charged employees and employees working in the Project Implementation Committees. (iii) A candidate who is retrenched Government servant will be allowed to deduct from his age the period of all temporary service previously rendered by him up to a maximum limit of 7 years even if it represents more than one spell provided that the resultant age does not exceed the upper age limit by more than three years. (iii) A candidate who is retrenched Government servant will be allowed to deduct from his age the period of all temporary service previously rendered by him up to a maximum limit of 7 years even if it represents more than one spell provided that the resultant age does not exceed the upper age limit by more than three years. Explanation - The term “retrenched Government servant” denotes a person who was in temporary Government service of this State or of any of the constituent units, for a continuous period of not less six months and who was discharged because of reduction in establishment not more than three years prior to the date of his registration at the employment exchange or of application made otherwise for employment in Government Service. (iv) A candidate who is an ex-serviceman will be allowed to deduct from his age the period of all defence service previously rendered by him provided that the resultant, age does not exceed the upper age limit by more than three years. Explanation - The term “ex-serviceman” denotes a person who belonged to any of the following categories and who was employed under the Government of India for a continuous period of not less than six months and who was employed under the Government of India for a continuous period of not less than six months and who was retrenched or declared surplus as a result of the recommendation of the Economy Unit or due to normal reduction in establishment not more than three years before the date of his registration at any employment exchange or of application made otherwise for employment in Government Service: - (1) Ex-servicemen released under mustering out concessions; (2) Ex-servicemen enrolled for the second time and discharged on - (a) completion of short term engagement, (b) fulfilling the conditions of enrollment; (3) Ex-personal of Madras Civil Units; (4) Officers (Military and Civil) discharged on completion of their contract (including short service Regular Commissioned Officers); (5) Officers discharged after working for more than six months continuously against leave vacancies; (6) Ex-servicemen invalidated out of service; (7) Ex-servicemen discharged on the ground that they are unlikely to become efficient soldiers; (8) Ex-servicemen who are medically boarded out on account of gun-shot, wounds etc. (d) The upper age limit shall be relaxable up to 38 years of age in respect of candidates who are employees of Madhya Pradesh State Corporations/Boards. (e) The general upper age limit shall be 35 years in respect of widow destitute and divorced women candidates. (f) The upper age limit shall be relaxable upto maximum of 2 years in respect of those candidates who are holding Green Card under the Family Welfare Programme. (g) The general upper age limit shall be relaxed upto 5 years in respect of awarded superior cast partner of a couple under the Inter Caste Marriage incentive programme of the Tribal, Harijan and Backward Classes Welfare Department. (h) The upper age limit shall also be relaxed upto 5 years in respect of “Vikram Award” holder candidates. (i) The upper age limit shall be relaxed in the case of voluntary Home Guards and non-commissioned officers of Home Guards for the period of service rendered so by them subject to the limit of 8 years but in no case their age should exceed 38 years. Note.- Candidates who are admitted to the examination/selection under the age concessions mentioned in rule 8(c) (i) and (ii) above will not be eligible for appointment if after submitting the application, they resign from service either before of after taking the examination. They will, however, continue to be eligible if they are retrenched from the service or post after submitting the applications. In no other case will these age limits be relaxed. Departmental candidates must obtain previous permission of the appointing authority to appear for the examination.” 3. According to the learned counsel for the petitioner, the eligibility of the candidate is required to be taken into consideration with reference to the last date of submission of application form and it cannot be left to be decided on the basis of fortuitous circumstance of commencement of the date of examination/selection. He submits that on account of the aforesaid illegal and arbitrary rule, the petitioner, who is qualified to be appointed on the post of Assistant Professor, as on the last date of submission of application form, shall be disqualified for appointment, if her maximum age is determined with reference to 1.1.2015 in pursuance to the aforesaid impugned rule. 4. He submits that on account of the aforesaid illegal and arbitrary rule, the petitioner, who is qualified to be appointed on the post of Assistant Professor, as on the last date of submission of application form, shall be disqualified for appointment, if her maximum age is determined with reference to 1.1.2015 in pursuance to the aforesaid impugned rule. 4. Having considered the submissions made by the learned counsel for the petitioner and having gone through Rule 8 (1) (a) of Rules of 1990, we find that there is no illegality or arbitrariness in fixation of the cut-off date. 5. It has now been settled that the State is entitled to fix a cut-off date. In the Rules of 1990, if the minimum and maximum age limit has been fixed and cut-off date by which the petitioner has to satisfy the prescribed eligibility qualification of age has also been fixed, in our considered view, it cannot be termed to be arbitrary, because for some candidates like the petitioner, it is not suitable. 6. True, it is that there exists Court’s power of judicial review in this behalf, but is limited in the sense that the action can be struck down only if it is found to be arbitrary. Merely because of fixation of a cut-off date in the rule, the employee looses his / her chance very narrowly, that would not render the rule to be invalid or arbitrary. Such hazards would be there in all the services. Only because it causes hardship to a few persons, it will not itself be a good ground for invalidating the fixation of cut-off date. [See (2009) 3 SCC 35 Council of Scientific and Industrial Research and others v. Ramesh Chandra Agrawal and another] 7. In view of the aforesaid legal position, in our considered view, no case for quashment of the impugned Rule 8 (1) (a) of the Rules of 1990 is made out. 8. The petition fails and is hereby dismissed.