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2017 DIGILAW 1251 (MAD)

A. Jegan v. State of Tamil Nadu, Represented by the Secretary to Government, Personnel and Administrative Reforms Department

2017-04-25

S.S.SUNDAR

body2017
ORDER : In view of the fact that the issue involved in these Writ Petitions are one and the same, both the cases are taken up together and disposed of by a common order. 2. The Writ Petition in W.P.(MD)No.2982 of 2017 has been filed challenging the notification dated 23.01.2017 issued by the second respondent with regard to recruitment of Grade-II Police Constable wherein and whereby the cut-off date was fixed as 01.07.2017 and to direct the respondents to consider the petitioner's application dated 16.02.2017. 3. The Writ Petition in W.P.(MD)No.2081 of 2017 has been filed seeking issuance of a Writ of Mandamus, directing the respondents herein to consider the petitioner for selection and appointment to the post of Grade-II Police Constable (Armed Force) notified by the second respondent under ‘Tamil Nadu Uniformed Service Selection Committee, Grade-II Police (District & Town Armed Force-Men-Women-Third Sex) Grade II Police (Tamil Nadu Special Police Force-Men), Grade-II Prison Police (Men and Women) & Fire Service (Men) Post General Selection-2017 (Selection Mark No.1), Advertisement No.117’ published in the Tamil Daily ‘Dinathanthi’ dated 23.01.2017, giving relaxation to her age as a last chance to participate in the public employment. 4. The case of the petitioner in W.P.(MD)No.2982 of 2017 is that by a notification dated 23.01.2017, the respondents 1 and 2 called for the recruitment for the post of Grade-II Police Constable. The petitioner has applied for the same on 16.02.2017. As per the notification, dated 23.01.2017, the aspiring candidate must have completed the age of 18 years as on 01.07.2017 and he should not exceed the age of 26 years. In other words, the candidate should be born on or after 01.07.1991. Since, the petitioner was born before 01.07.1991, the petitioner is not competent and hence, he was constrained to file the Writ Petition challenging the notification dated 23.01.2017 insofar as it relates to the age limit. 5. In other words, the candidate should be born on or after 01.07.1991. Since, the petitioner was born before 01.07.1991, the petitioner is not competent and hence, he was constrained to file the Writ Petition challenging the notification dated 23.01.2017 insofar as it relates to the age limit. 5. The petitioner has raised the following grounds:- a. the impugned notification is arbitrary and illegal being violative of Article 14 and 19 of the Constitution of India; b. the age restriction to persons who participated in the examination is violative of Article 309 of the Constitution of India; c. the age limit prescribed is not in consonance with any rule or statute; d. the date mentioned in the notification namely 01.07.2017 is no way connected with the date of notification; e. the petitioner is qualified and has satisfied all other requirements but unable to participate the recruitment process only because of the unreasonable restriction which is unconstitutional and opposed to several precedents of the Hon'ble Supreme Court and this Court; and f. the second respondent ought to have followed the humane approach theory and the notification prescribed is an unreasonable restriction which is liable to be removed. 6. The second respondent filed a detailed counter inter alia stating as follows:- 6(1) Tamil Nadu Uniformed Services Recruitment Board issued a notification for the Common Recruitment of Grade-II Police Constable/Grade-II Jail Warder/Fireman on 23.01.2017. The minimum and upper age was fixed with reference to each category without any discrimination. 6(2) The upper age limit for Most Backward Class category to participate in the selection process of Common Recruitment is 26 years as on 01.07.2017. Since the petitioner's date of birth is 06.06.1991, the age of the petitioner as on 01.07.2017 is 26 years and one month. Hence, the petitioner is ineligible to participate in the selection process of Common Recruitment-2017. 6(3) The age eligibility criteria to participate in the selection process for the Common Recruitment-2017 is fixed as per Rule 14(1), Annexure-II of the Tamil Nadu Police Subordinate Service Rules. Since the vacancies were notified throughout the State of Tamil Nadu, Section 20(6)(a) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, is followed which mandates a person who seeks employment should complete eighteen years of age on the 1st July of the year in which the vacancies notified. Since the vacancies were notified throughout the State of Tamil Nadu, Section 20(6)(a) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, is followed which mandates a person who seeks employment should complete eighteen years of age on the 1st July of the year in which the vacancies notified. Similarly, the age norms for the Common Recruitment is fixed based on the amendment issued in both the Police Subordinate Service Rules and Special Police Subordinate Service Rules. Since the age criteria was fixed as per the statutory rule and there is no provision to relax the age norms in the rules governing the recruitment of Grade-II Police Constable/Grade-II Jail Warder/Fireman, the prayer of the petitioner to relax the age norms or to set aside the age norms on the ground that it is arbitrary or on the ground that it is being violative of constitution, etc., are not tenable. Unless permitted by rules no age relaxation can be claimed as a matter of right. When the eligibility norms are prescribed in a rule and are applied uniformly, no indulgence can be shown to the petitioner. 6(4) The process of recruitment of Sub-Inspector of Police and Police constables are being done by the respondent Board based on the requirement as directed by the Government. The notification for the Common Recruitment of Grade-II Police Constable was issued on 23.01.2017 and hence, the cut-off date for calculating the age norms was fixed as 01.07.2017 as per the recruitment rule. Further, in order to avoid uncertainty in respect of maximum or minimum age of a candidate, which may arise if such age limit is linked to the process of selection which may take a uncertain time, it is desirable that such a cut-off date should be with reference to a fixed date always. The process of selection namely the date of written examination has no correlation with the cut-off date of 1st July. The cut-off date of 1st July will remain the same for every notification issued from 1st January to 31st December in a year by any of the recruiting agency in the Tamil Nadu State including Tamil Nadu Public Service Commission. 6(5) A Division Bench of this Court has held in Writ Petition No.28740/2015 in the case of N. Balaraman Vs. The cut-off date of 1st July will remain the same for every notification issued from 1st January to 31st December in a year by any of the recruiting agency in the Tamil Nadu State including Tamil Nadu Public Service Commission. 6(5) A Division Bench of this Court has held in Writ Petition No.28740/2015 in the case of N. Balaraman Vs. Union of India and others that Courts cannot issue any direction to the appointing authority to grant any relaxation of age, contrary to recruitment rules in which the maximum age is prescribed. Regarding the fixation of cut-off date, the Government or recruitment agency must be left with some lavage so that they may take a decision, taking into account the financial, administrative or other considerations. 6(6) Since fixation of age norms being the policy of the Government, the petitioner can not challenge the reason behind such fixation especially when no mala fide is alleged by the petitioner. Whenever the age limit or cut-off date is fixed under the recruitment rules, inconvenience or hardship that may be caused to the individuals cannot be avoided. However, merely because the petitioner is affected, he cannot challenge the age limit or cut-off date on the ground of violation of Article 14 of the Constitution of India, as there cannot be a mathematical or logical formula to fix cut-off date or age limit. In the present case, the cut-off date is neither irrational or whimsical or capricious so as to successfully challenge the cut-off date or age limit. This Court has already dismissed the Writ Petitions in W.P.(MD) No.3354 of 2017 and 3358 of 2017 by order dated 27.02.2017. 7. Heard the learned Counsel for the petitioner and the learned Special Government Pleader appearing for the 2nd respondent. 8. Rule 14 of Special Rules for Tamil Nadu Police Subordinate Service reads as follows:- “No person shall be eligible for appointment to the class and category specified in column (1) of Annexure II to those rules unless he is of the age limit for appointment otherwise than by promotion specified in column (2) and possesses the qualification prescribed in the corresponding entry in column (3) thereof G.O.Ms.No.69, Home (Pol-VI) Dept. dated 18.1.2002. Note: the age limit specified in Annexure II to those rules shall be applied with reference to the first day of July of the year in which the selection for appointment is made.” 9. dated 18.1.2002. Note: the age limit specified in Annexure II to those rules shall be applied with reference to the first day of July of the year in which the selection for appointment is made.” 9. As per Annexure-II of the rules, it is not in dispute that the candidate who are eligible to be appointed and who belong to Most Backward Class community should have completed 18 years of age as on 01.07.2017 and must have born on or after 01.07.1991. Clause-11 of the recruitment notification is relating to the age limit. Sub clause-III gives a clear indication about the cut-off date for Most Backward and Denotified Classes. The whole question in this Writ Petition is about the validity of the age restriction as found in the recruitment notification. As to the power of executive to prescribe a particular cut-off date in relation to recruitment, the Hon'ble Supreme Court has recommended judicial restraint and opined that the matter should ordinarily be left to the Executive Authorities to fix the cut-off date. However, the cut-off date or age limit can also be challenged, if they are fixed whimsically or capriciously without any rational basis. In the present case, except stating that the petitioner is not able to participate because of the age relaxation/restriction, the petitioner has not demonstrated before this Court as to how the cut-off date is whimsically and capriciously fixed. 10. Though it was contended by the petitioner that there was long gap in the recruitment, the same is stoutly denied by the respondent by referring to the recruitment process initiated by the Board by conducting the recruitment of Tamil Nadu Special Police Youth Brigade during 2013-14 and the recruitment by conducting a special examination in 2016. 11. The notification for the recruitment of Grade-II Police Constable was issued on 23.01.2017. Hence, the cut-off date for calculating the age norms was fixed on 01.07.2017. This cannot be faulted and this Court is not in a position to accept the case of the petitioner that the cut-off date is arbitrarily fixed. 12. The petitioner in the Writ Petition has not substantiated that the fixation of cut-off date is discriminatory. The petitioner has relied upon the interim order granted by this Court on 16.02.2017 in W.M.P. (MD) Nos. 2216, 2218 & 2220 of 2017 in W.P. (MD) Nos. 2679, 2680 & 2681 of 2017. 12. The petitioner in the Writ Petition has not substantiated that the fixation of cut-off date is discriminatory. The petitioner has relied upon the interim order granted by this Court on 16.02.2017 in W.M.P. (MD) Nos. 2216, 2218 & 2220 of 2017 in W.P. (MD) Nos. 2679, 2680 & 2681 of 2017. This Court has only permitted the petitioner in the Writ Petitioners therein to submit their applications with an observation that such permission will not confer any right on the Writ Petitioners and further observed that the process of the applications shall be depending upon the outcome of the Writ Petitions. 13. The learned counsel for the petitioner who has voluntarily made his submissions on merits of the Writ Petition cannot rely upon the interim order of this Court which is not a final decision on the merits. 14. The law is well settled as regards the scope of judicial review in the matter of administrative orders of Executive authorities especially with regard to the eligibility criteria and norms fixed for recruitment. The Hon'ble Supreme Court in the case of Government of Andhra Pradesh v. N. Subbarayadu reported in (2008) 14 SCC 702 has held as follows:- “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.” 15. It has been repeatedly held by the Hon'ble Supreme Court that fixing a cut-off date for determining the maximum or minimum age is the discretion of the employer and judicial review is not permissible unless the fixation of cut-off date is so capricious or whimsical. The Hon'ble Supreme Court in the case of Dr. Ami Lal Bhat v. State of Rajasthan and others reported in (1997) 6 SCC 614 has held as follows:- "5. 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 and others reported in (1997) 6 SCC 614 has held as follows:- "5. 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. Parameswaran Match Worksand has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B. Sarat Chandra the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut-off date was challenged. This Court considered the various steps required in the process of selection and said, "when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. 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". 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 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. 6. In the case of Union of India and Anr. v. Sudhir Kumar Jaiswal, 1994 4 SCC 212 the date for determining the age of eligibility was fixed at 1st of August of the year in which the examination was to be held. At the time when this cut off date was fixed, here 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 Parmeshwar 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." 16. In the case of Shankar K. Mandal and others v. State of Bihar and others reported in (2003) 9 SCC 519 , the Hon'ble Supreme Court has made the position clear after taking support from earlier judgment in the following lines:- “What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr., 1997 (4) SCC 18 , Bhupinderpal Singh v. State of Punjab, 2000 (5) SCC 262 and Jasbir Rani and ors. The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr., 1997 (4) SCC 18 , Bhupinderpal Singh v. State of Punjab, 2000 (5) SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr., 2002 (1) SCC 124 are as follows:- (1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules; (2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.” 17. In another judgment of the Hon'ble Supreme Court in the case of A.P. Public Service Commission, Hyderabad and another v. B. Sarat Chandra and others reported in (1990) 2 SCC 669 similar issue arose for consideration. Recruitment to the post of Deputy Superintendent of Police in the State of Andhra Pradesh where Rule 5 of Andhra Pradesh Police Service Rules which is similar to the Rule in Tamil Nadu as regards qualifications. A candidate who was not qualified as on the date of 1st July of the year of recruitment claimed that the relevant date ought to be the date of preparation of list of selected candidates. Though the Tribunal accepted the contention of the candidates, the Hon'ble Supreme Court allowed the Civil Appeal and held as follows:- “The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. 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 recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the Rule making authority. Though the above case is relating to the minimum age, the principles of law laid down in the above judgment is applicable to the present case.” 18. In the case of Mohd. Sartaj v. State of U.P. reported in AIR 2006 SC 3492 it has been held that eligibility/minimum qualification should be fulfilled on the date of recruitment. In the case before the Hon'ble Supreme Court no other date was fixed or prescribed by the Rules. 19. In the case of State of Rajasthan v. Hitendra Kumar Bhatt reported in AIR 1998 SC 91 the Hon'ble Supreme Court has held as follows:- “A cut-off date by which all the requirements relating to qualifications have to be met, cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the requisite qualification on the prescribed date. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others.” 20. In view of the principles of law reiterated by the Hon'ble Supreme Court and the Rule 14(1) and Annexure II of Tamil Nadu Police Subordinate Service Rules, this Court is not inclined to accept the case of the petitioners. Relaxing the prescribed requirements in the case of one individual may, therefore, cause injustice to others.” 20. In view of the principles of law reiterated by the Hon'ble Supreme Court and the Rule 14(1) and Annexure II of Tamil Nadu Police Subordinate Service Rules, this Court is not inclined to accept the case of the petitioners. As pointed out by the Hon'ble Supreme Court and this Court earlier, it is a policy decision of the Government and the Executive to fix the cut-off date having regard to the various considerations and the Court is expected to observe judicial restraint and cannot interfere casually merely because some inconvenience is caused to individuals. 21. For all the above reasons, I do not find any merits in the Writ Petitions and hence, both the Writ Petitions are dismissed. No costs. Consequently, connected W.M.P.(MD) Nos. 2400 & 2401 and 1734 of 2017 are closed.