-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.517 of 20[SECTION] With I.A. No.7115 of 20[SECTION] With [CASE NUMBER] [ENTITY], Son of Suleman Kazi, Resident of Badalpur, Maharajganj, Tuni, P.O. and P.S. - Tundi, District - Dhanbad - 828109. Appellant Versus 1. The [ENTITY] through its Chairman, Circular Road, P.O. & P.S. - Lalpur, District - Ranchi - 834001 2. The [ENTITY] Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
For the Appellant : Mr. [ENTITY], Advocate For the Respondents : Mr. [ENTITY], Advocate
15/Dated: 9th July, 2018 Oral Order Per [ENTITY], A.C.J
1. This interlocutory application has been preferred under [SECTION] of the [ACT] for condonation of delay of 258 days in preferring this Letters Patent Appeal.
2. Having heard counsels for both the sides, and looking to the reasons stated in this interlocutory application, especially, in paragraph nos.3, 4, and 5, there are reasonable reasons for condonation of delay. We therefore, condone the delay in preferring this Letters Patent Appeal.
3. I.A. No.7115 of 20[SECTION] is allowed and disposed of. With
4. This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition being [CASE NUMBER] was dismissed by the learned Single Judge vide judgment and order dated 03.12.2015, whereby the result of this appellant was not permitted to be declared mainly for the reason that this appellant has applied under the reserved category namely, viz., Backward Class - I and the caste certificate was to be given by the Sub-divisional Officer, as per the advertisement, whereas this appellant has given the caste certificate issued by Circle Officer.
5. Having heard counsels for both the sides, and looking to the facts and circumstances of the case, it appears that in pursuance of the public advertisement, issued by the respondents for the post of Civil Judge (Junior Division), this appellant applied. There was some reserved seats for the Backward Class - I category candidates. This appellant is claiming reservation under the Backward Class - I category.
6. It further appears from the facts of the case that as per the advertisement given by the respondents/ [ENTITY], Ranchi, which is at Annexure - 1 to the memo of this Letters Patent Appeal, there is stipulation contained in Clause - [SECTION] (iii) & (iv) that if any candidate is seeking any benefit under the reservation, he has to submit a caste certificate issued by an officer not below the rank of Sub-divisional Officer.
7. This appellant has submitted his application along with the caste certificate issued by the Circle Officer, who is below the rank of Sub-divisional Officer. Thus, it appears that this appellant cannot get the benefit of reservation, because the caste certificate was issued by an officer, below the rank of Sub-divisional Officer, and hence, this appellant was treated as a general category candidate and not as Backward Class - I category candidate.
8. Thus, it appears that this appellant is seeking slight relaxation in the condition imposed under Clause
- [SECTION] (iii) & (iv) of the advertisement at Annexure - 1 which is not permissible. While exercising power under [SECTION] of the [ACT], we cannot alter the conditions imposed by the State of Jharkhand which are at Clause - [SECTION] (iii) & (iv) of the advertisement, which is at Annexure - I otherwise, there will be several candidates who will get certificates from any officer of the Government, and they will apply for the post in question, and later on they will claim reservation. It ought to be kept in mind that this appellant has applied for the post of a Judge. This candidate should have been an accurate candidate. This condition must have been read in detail by this appellant. We see no reason to dilute these conditions. Even, otherwise also conditions of advertisement have already been accepted by this appellant, because he has appeared in the examination, and now he cannot challenge the conditions of the advertisement issued by the respondents.
9. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph no.18 which reads as under :
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See [PRECEDENT].) (See also [PRECEDENT].)"
(Emphasis supplied)
10. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph no.54 which reads as under :
"54. The Corporation did not violate the right to equality guaranteed under [SECTION] and [SECTION] of the [ACT]. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion."
(Emphasis supplied)
11. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph no.24, which reads as under :
"24. When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction."
(Emphasis supplied)
12. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph nos.18 and 24, which read as under :
"18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.
24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
(Emphasis supplied)
13. It has been held by the Division Bench of this Court in L.P.A. No.[SECTION]9 of 2015 vide judgment and order dated 01.09.2015, in paragraph no.4(iv), which reads as under :
"4(iv) It ought to be kept in mind that always there is cut off date for presentation of the documents. Whenever any cut off date is given for presentation of the documents, there are bound to be few candidates who are falling on the wrong side of the cut off date, any be because of any reason whatsoever, but, those who cannot produce their documents on or before given cut off date in public employment examination, those candidature is bound to be rejected "
(Emphasis supplied)
14. It is also submitted by the counsel for the appellant (original petitioner) that correct caste certificate which is issued by the Sub-divisional Officer, has already been produced as an annexure in the writ petition being W.P. (C) No.2945 of 2014. This contention is not accepted by this Court for allowing this Letters Patent Appeal mainly for the reason that whenever a public advertisement is given for supply of the documents, there is bound to be a cut off date. In the facts of the present case, the cut off date is prescribed as 06.01.2014, and this appellant has failed to submit the document a required under Clause [SECTION] (iii) & (iv) of the public advertisement on or before the said cut off date. Caste certificate cannot be filed in the writ petition. It ought to have been supplied to the [ENTITY], Ranchi, on or before the cut off date. Whenever any cut off date is prescribed, there are bound to be a few candidates who will fall on the wrong side of the cut off date. It does not mean that the cut off date is arbitrary or that it does not mean that at any point of time, leisurely, a candidate can supply the document, even after, the cut off date, and sometimes in the writ petition by way of annexure, which is done by this appellant. This Court cannot extend the cut off date.
15. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph no.10, which reads as under :
"10. The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967 as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967 that its total clearance for the financial year 1967-68 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions (see [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT]. The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide off the reasonable mark See [PRECEDENT] per Justice [ENTITY]."
(Emphasis Supplied)
[SECTION]. It has been held by the Hon'ble Supreme Court in the case of A.P. Public Service Commission Vs. B. Sarat Chandra, reported in (1990) 2 SCC 669, in paragraph nos.6, 7 & 8, which read as under :
"6. There is no dispute that the eligibility of a candidate as to age for appointment as Deputy Superintendent of Police should be determined according to [SECTION] of the [ACT]. It is, therefore, necessary to look first at that Rule. [SECTION] so far as is relevant provides:
"5. Qualifications. (A) No person shall be eligible for appointment as a Deputy Superintendent of Police, Category 2 by direct recruitment unless he
(i) has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made.
* * *"
7. The rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police.
Minimum age is 21 years. The candidate must have completed 21 years on the first day of July of the year in which the selection is made. He should not have also completed 26 years as on that day. The Tribunal while construing this rule has observed:
"According to the procedure the process of selection begins with the issue of the advertisement and culminates in forwarding the list to the appointing authority. The essence of the process lies in the preparation of the list. A selection can be said to have been done only when the list is prepared. In this view the eligibility of the candidates as to age has to be determined at this stage."
If the word 'selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. 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. [SECTION] of the [ACT] 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.
8. The appeal therefore, is allowed setting aside the order of the Tribunal.
(emphasis supplied)
17. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph no.21, which reads as under :
"21. We find considerable force in the aforesaid submissions of Shri [ENTITY]. It is settled law that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide off the reasonable mark. (See: [PRECEDENT] at p. 579 and [PRECEDENT] at p. 269.) In the present case, the date, 31-12- 1993, as fixed by notification dated 21-6-1995, in the matter of grant of exemption from the eligibility test for appointment on the post of lecturer has a reasonable basis keeping in view the time taken in submitting the Ph.D. thesis or obtaining M. Phil. degree by candidates who had undertaken the study for Ph.D. or M. Phil. degree prior to the issuance of the 1991 Regulations and the date, 31-12- 1993, cannot be held to be capricious or whimsical or wide off the reasonable mark. The High Court of Punjab and Haryana has proceeded on the basis that the cut-off date for the purpose of granting exemption from eligibility test should have nexus with the date of the advertisement inviting applications for appointment on the post of Lecturers. The High Court was in error in taking this view.
(emphasis supplied)
18. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph nos.5, 7, 11 and 17, which read as under :
"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 [PRECEDENT] and has been reiterated in subsequent cases. In the case of [PRECEDENT] 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".
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 an 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.
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7. In the present case, the cut-off date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All Service Rules are uniform on this point. Looking to the various dates on which different departments and different heads of administration may issue their advertisements for recruitment, a uniform cut-off date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for certainty. Such a uniform date prescribed under all Service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as grossly unreasonable or arbitrary. The time-gap between the advertisement and the cut-off date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cut-off date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cut-off date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cut-off date. But there is no basis for urging that this is the only reasonable cut-off date. Even such a date is liable to question in given circumstances. In the first place, making a cut-off date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, making it dependent on the date when each department issues an advertisement, and the date which each department concerned fixes as the last date for receiving applications. A person who may fall on the wrong side of such a cut-off date may well contend that the cut-off date is unfair, since the advertisement could have been issued earlier; or in the alternative that the cut-off date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cut-off date fixed and the manner in which it is fixed. That is why this Court has said in the case of Parameswaran Match Works and later cases that the cut-off date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cut-off date can be the last date for receiving applications, appears to be without any basis. In our view the cut-off date which is fixed in the present case with reference to the beginning of the calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prone to vagaries and is less uncertain.
11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining
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the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.
17. In the premises the appeals of the candidates who have challenged the cut-off date under the relevant rules are dismissed while the appeals filed by the State of Rajasthan are allowed. The validity of the Rules concerned relating to the cut-off date being fixed with reference to 1st of January of the year following the application is upheld. There will be no order as to costs."
(emphasis supplied)
19. It has been held by the Hon'ble Supreme Court in the case of [PRECEDENT], in paragraph nos.5 to 9, which read as under :
"5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary.
6. No doubt in D.S. [ENTITY] v. Union of India this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in [ENTITY] case as observed in para 29 of the decision of this Court in [PRECEDENT].
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.
8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide [PRECEDENT] (vide SCC para 5), [PRECEDENT], [PRECEDENT] It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of [SECTION] unless the said cut-off date leads to some blatantly
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capricious or outrageous result.
9. As has been held by this Court in [PRECEDENT] and in [PRECEDENT] the court must maintain judicial restraint in matters relating to the legislative or executive domain."
(emphasis supplied)
20. In view of the aforesaid decisions, neither we can dilute the conditions contained in Clause - [SECTION] (iii) & (iv) of the public advertisement, which is at Annexure - 1 nor can we, alter the cut off date prescribed in the facts of the present case which was 06.01.2014 for supplying the documents as required in the advertisement.
21. These aspects of the matter have been properly appreciated by the learned Single Judge while deciding the writ petition being [CASE NUMBER] vide judgment and order dated 03.12.2015. We see no reason to take any other view than what is taken by the learned Single Judge, hence, there is no substance in this Letters Patent Appeal, and the same is, therefore, dismissed. 22 . In view of the order passed in this Letters Patent Appeal, [CASE NUMBER] is, hereby, disposed of.
([ENTITY], A.C.J) ([ENTITY], J) [PRECEDENT] - Biswas/-