IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 219 of 2010 Rajendra Kumar ….…… Appellant Versus State of Uttarakhand and another ………. Respondents Mr. Ajay Veer Pundir, Advocate for the appellant. Mr. Vinay Kumar, Standing Counsel (Govt. of Uttarakhand) for respondent No. 1. Mr. B.D. Kandpal, Advocate for respondent No. 2. Date of Judgment: 09.03.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. BARIN GHOSH, C.J. (ORAL) Delay Condonation Application No. 9504 of 2010 In the advertisement, published sometimes in April, 2007, it was held out that a candidate belonging to Scheduled Caste category, who has not completed the age of 40 years as on 1st July, 2007, is entitled to respond to the said advertisement. Despite having been born on 1st July, 1967 and, accordingly, despite he having had completed 40 years as on 1st July, 2007, appellant responded to the said advertisement. He was thereupon asked to appear at the preliminary examination. After he was declared successful in the said examination, by a letter dated 12th August, 2010, the response of the appellant to the advertisement was cancelled on the ground that he is overage. The said order was assailed in a writ petition. Court found that on 1st July, 2007, appellant, having had completed 40 years, was overaged and, accordingly, there is no scope of interference with the order impugned in the writ petition. The writ petition was, accordingly, rejected by the judgment and order under appeal. 2. Being aggrieved thereby, present appeal has been filed. There has been 41 days delay in preferring the appeal and, accordingly, an application has been made for condonation of delay in preferring the appeal. We have considered the averments made in the application for 2 condonation of delay in preferring the appeal and being satisfied with the sufficiency of reasons furnished therein, allow the same. 3. By consent of the parties, we have heard the appeal on its merit. 4. In as much as there is no dispute as regards the factual matrix mentioned above, there cannot be any contention that appellant was not, in fact, overaged as on 1st July, 2007. That being the situation, there is no scope of interference. 5. The appellant contended that the advertisement was of April and, accordingly, there was no just reason to fix the age as on 1st July, 2007. The contention of the appellant may be correct, but the fact remains that he did not challenge the advertisement. The advertisement made it absolutely clear that anyone born before 2nd July, 1967 should not respond to the advertisement. Despite appellant having been born on 1st July, 1967, he responded to the said advertisement and thereby took a chance. 6. Merely because the appellant was permitted to participate in the preliminary examination, would not make the situation any different, in as much as, in the matter of permitting the appellant to participate in the preliminary examination, the appellant played a great role by representing that he is otherwise eligible while responding to the advertisement, when he was, in terms of the advertisement, not entitled to respond the same. 7. Therefore, there is nothing further to be done; the appeal fails and the same is dismissed. (Sudhanshu Dhulia, J.) (Barin Ghosh, C.J.) 09.03.2011 09.03.2011 Amit