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2022 DIGILAW 17 (UTT)

Himanshu Bartwal v. State of Uttarakhand

2022-02-11

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. The respondent no.2, the Uttarakhand Subordinate Service Selection Commission (for short, “the Commission”) published an advertisement on 28.12.2021 for recruitment of Constable Police. In Clause 6 of it, it is provided that the cut-off date for calculating age would be 01.07.2021. The petitioner is aggrieved by that part of the advertisement. 2. It is the case of the petitioner that the rules which govern the services of Constable Police do not provide any cut-off date for recruitment to the post of Constable Police. The petitioner has completed 18 years post 01.07.2021. Therefore, he should be permitted to appear in the recruitment process. Reference has been made to the Uttarakhand Police Constable and Head Constable (Civil Police, Intelligence and Armed Police) Service Rules, 2018, (the Rules), particularly, Rules 5 and 9 have been referred to. Reference has also been made to the Uttarakhand Subordinate Service Selection Commission Act, 2014 (for short, “the Act”) to argue that, in fact, the Commission has no authority to fix cut-off date. 3. Heard learned counsel for the parties through video conferencing and perused the record. 4. Learned counsel appearing for the petitioner would submit that the Rule 9 to the Rules provide for age for recruitment to the post of Constable. According to Rule 9, the age of candidates should be between 18 years and 22 years. It is argued that the Rules nowhere prescribes any cut-off date for recruitment of Constables. Section 15 of the Act is with regard to powers and duties of the Commission but, it is argued that by this provision also the Commission cannot fix the cut-off date. In view of it, it is argued that the last date for submission of the form which is 16.02.2022, should be fixed as the cut-off date for determining the age of the candidates. 5. In support of his contention, learned counsel placed reliance the principle of law as laid down in the case of Dr. Ami Lal Bhat vs. State of Rajasthan and others, (1997) 6 SCC 614 , Mrs. Mayuri vs. Hon'ble High Court of Judicature at Bombay and another (Writ Petition No.5380 of 2010), Shankar K. Mandal and others vs. State of Bihar and others, (2003)9 SCC 519 and Rakesh Nautiyal vs. State of Uttarakhand and Others and connected matters [Writ Petition No.22 of 2010 (S/B)]. 6. In the case of Dr. Mayuri vs. Hon'ble High Court of Judicature at Bombay and another (Writ Petition No.5380 of 2010), Shankar K. Mandal and others vs. State of Bihar and others, (2003)9 SCC 519 and Rakesh Nautiyal vs. State of Uttarakhand and Others and connected matters [Writ Petition No.22 of 2010 (S/B)]. 6. In the case of Dr. Ami Lal Bhat (supra), the Hon’ble Supreme Court observed, “fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is in the discretion of the rule-making authority or the employer ………………… 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”. 7. In the case of Mrs. Mayuri (supra), the cut-off date was fixed 27.09.2009, on which date, the petitioner in that case was 13 days short of the eligible age. There was no provision in the Act, which governed the service condition in that case prescribing any cut-off date for calculating the age. The arguments were that the cut-off date should be the last date for submission of the application form. The Court held that the petitioner eligible in that case observing that the candidate had completed prescribed age on the date of filing of the application or on the last date prescribed to receive the application. 8. In the case of Shankar K. Mandal (supra), the Hon’ble Supreme Court after considering the case that the law on the subject in para 5 observed as hereunder:- “…….…………………………………………………………….. ………………………………………………………………………...……………………………………………..………………………………………………………………………….. 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 v. Chander Shekhar [ (1997) 4 SCC 18 : 1997 SCC (L&S) 913], Bhupinderpal Singh v. State of Punjab [ (2000) 5 SCC 262 : 2000 SCC (L&S) 639] and Jasbir Rani v. State of Punjab [ (2002) 1 SCC 124 : 2002 SCC (L&S) 107] ) 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. (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.” 9. In the case of Rakesh Nautiyal (supra), learned counsel for the petitioner referred the observation made in the judgment, when the Hon’ble Court observed, “that being the conclusion, it would not be proper on our part to expand the meaning of Sub-Rule (3) of Rule 8 of the 1991 Rules as was propounded by the learned counsel for the petitioners.” Reading this portion of the judgment, learned counsel for the petitioner would submit that, in fact, the Rules cannot be expanded and the Commission cannot fix the cut-off date. 10. On the other hand, learned counsel appearing for the Commission would submit that the cut-off date fixed is not arbitrary. The rule 5 of the Rules provide for cut-off date as the first day of the recruitment year. According to the learned counsel, recruitment year begins with first date of July of the Calendar year. Accordingly, it is argued that the cut-off date for calculating the age for recruitment of Constable has been fixed in the matter. 11. Learned counsel for the Commission would submit that, in fact, the Hon’ble Supreme Court in the case of Hirandra Kumar 2019 SCC OnLine SC 254, observed that the power to fix the cut-off date or age limit is incidental to the regulatory control which an authority exercises over the selection process. In para 23, the Hon’ble Court observed as hereunder:- “23. The legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut-off or age limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. A certain degree of arbitrariness may appear on the face of any cut-off or age limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.” 12. The learned counsel appearing for the Commission would submit that rule 5 of the Rules prescribes cut-off date for Constable as well as for Head Constable. Accordingly, it has been done and there is no reason to make any intervention at this stage. 13. On behalf of the State be submitted that it is a policy matter. 14. Controverting the arguments raised on behalf of the Commission, learned counsel for the petitioner has argued that rule 5 does not prescribe cut-off date for recruitment to the post of Constable. According to the learned counsel, rule 5 prescribes cut-off date in the matters of promotion of the Head Constables. Therefore, that rule cannot be read as prescribing cut-off date for recruitment of the Constable. 15. Continuing with this argument, learned counsel for the Commission would submit that there is a cut-off date given under Rule 5 and that cut-off date has been taken for recruitment to the Constable. Therefore, it cannot be termed as irrational and unreasonable. In addition to it, learned counsel for the Commission would submit that the Commission has not fixed the cut-off date instead the State Government has fixed the cut-off date. Along with the requisition, it has been given to the Commission. The Commission is executing the process of recruitment. 16. The proposition of law is much settled that fixing the cut-off date for calculating the age is in the discretion of rule-making authority or the employer. 17. In the case of Shankar Lal (supra), the Hon’ble Supreme Court in para 5 has culled out the law on the subject. The Commission is executing the process of recruitment. 16. The proposition of law is much settled that fixing the cut-off date for calculating the age is in the discretion of rule-making authority or the employer. 17. In the case of Shankar Lal (supra), the Hon’ble Supreme Court in para 5 has culled out the law on the subject. It makes clear that the cut-off date may be fixed as per service rules or as appointed for this purpose in the advertisement or if it is not done, lastly, the cut-off date shall be the last date appointed for submission of application form. 18. There is also no dispute with regard to the proposition that the Commission is not empowered to fix any cut-off date. It is truly argued that it is a recruiting agency. 19. Rule 5 of the Rules prescribes for the sources of recruitment in the service under the rules. Under the rules service means Police Constables and Head Constables. Rule 5 of the Rules provide that the Constable shall be appointed by direct recruitment. Sub Rule (2) of Rule 5 provides that 50% of the post of Head Constable shall be filled up by promotions from amongst such constables, who have not completed 45 years of age on the first day of recruitment year and who had completed 5 years from the date of their substantial appointments. From this group of Constables, the promotion can be made by the Departmental Promotion Examination. 20. Rule 5(2)(2) of the Rules provides for appointment of Head Constables by way of promotion from amongst Constables on the basis of rejection of unfit, who had completed five years of service on the first day of the recruitment year. 21. A bare reading of Rule 5 makes it clear that in so far as the cut-off date is concerned, it is prescribed for the appointment to the post of Head Constable alone. It is prescribed to calculate the age of such candidates, who may be eligible for departmental examination or promotion to the post of Head Constable. 22. Rule 9 of the Rules prescribes for age for Constable Police, it does not provide any cut-off date. 23. It is prescribed to calculate the age of such candidates, who may be eligible for departmental examination or promotion to the post of Head Constable. 22. Rule 9 of the Rules prescribes for age for Constable Police, it does not provide any cut-off date. 23. As discussed, the Rules specifically does not provide as to what would be the cut-off date for recruitment to the post of Constable, but the fact remains that the Rules prescribes cut-off date for appointment to the post of Head Constables. In both the modes, namely, by promotion and by departmental examination. This cut-off date is first day of July of the recruitment year. 24. A statement is given on behalf of the Commission that the cut-off date has not been fixed by the Commission instead State has given requisition fixing the cut-off date. Can the cut-off date so fixed be termed as irrational and arbitrary, so as to make an intervention? 25. In the Rules there is a cut-off date for appointment to the post of Head Constable. In the absence of any cut-off date prescribed for recruitment to the post of Constable, if the cut-off date prescribed for appointment to Head Constable is taken as a cut-off for recruitment to the Constable, it cannot be termed as irrational. It is the best way to interpret the Rules and it has not been done by any recruitment agency, but by the employer himself. The cut-off date is fixed by the employer, as told on behalf of the Commission, and the same date is published in the advertisement. 26. The Hon’ble Supreme Court has taken note of the fact that fixing a cut-off date may not be convenient to many. It is in all cases, whatever cut-off date is fixed, it may not be convenient to all. 27. In the instant case, as observed that for the appointment to the post of Head Constable, the cut-off date to the eligible candidates has been given. The same cut-off date has been applied in the instant case to the recruitment to the post of Constable, which cannot, as stated, the termed as unreasonable, it is the most reasonable manner to fix a cut-off date. The cut-off date has been fixed by the employer. It has been published in the advertisement. It cannot be termed as unreasonable or arbitrary. 28. The cut-off date has been fixed by the employer. It has been published in the advertisement. It cannot be termed as unreasonable or arbitrary. 28. In view of the above, this Court is of the view that there is no reason to make any interference. The petition deserves to be dismissed at the stage of admission itself. 29. The petition is dismissed in limine.