IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10691 of 2010 1. RINA KUMARI D/O SRI JHALAK DEO SINGH R/O VILL.- DARIAPUR, P.O.- GANGACHAK, P.S.- BHAGWANGANJ, MASAURHI, PATNA Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. BIHAR EMPLOYEES SELECTION COMMISSION VETNERY COLLEGE, PATNA-14 THROUGH ITS CHAIRMAN ----------- For the Petitioner : M/s Rajeev Prakash and Abhay Kumar Kashyap. For Staff Selection : Mr.Vipin Kumar. For the State : Mr.Rajeev Ranjan, J.C. to G.P.IV. 2 30.7.2010 By this writ petition, the petitioner challenges the cut off date of 23rd January,2006, as specified in Sub-rule(iii) of Rule 1 of the Bihar Special Primary Teacher Appointment Rules, 2010 framed under Article 309 of the Constitution . The case of the petitioner is that earlier for appointment of Primary Teacher, the State Government had framed rules in 2003. The said rules were held to be invalid by this Court, against which the State Government preferred SLP to the Apex Court being SLP(Civil) no. 22882 of 2004. In the year 2006 and to be precise on 23rd January,2006 pursuant to application made by the State Government before the Apex Court, the SLP was disposed of as withdrawn. Thereafter State framed new rules for the said appointment being rules of the year 2006. This led to several persons filing contempt application before the Apex Court being Contempt Application (Civil) No. 297 of 2007.The Apex Court by order dated 12.5.2010 issued a direction that the vacancies advertised and to be filled up by 2003 rules amounting to 34540 - 2 - Assistant Teachers have to be filled up by trained teachers on one time appointment basis according to seniority. Keeping in view the aforesaid , petitioner submits that State promulgated 2010 Rules as aforesaid but while doing so they have put a cut off date as 23rd January, 2006 and any person having obtained trained teachers’ qualification thereafter or those whose results were declared thereafter would be ineligible .The submission of the petitioner would be that the selection of this cut off date is fanciful and without any rationale as if it is taken out of hat. On the other hand, on behalf of the State learned Counsel submits that this date has been duly selected by the State Government keeping in view the date on which SLP of the State was finally withdrawn by the orders, as recorded by the Apex Court and it is further related to two events, which took place. Firstly, immediately upon SLP being withdrawn on 23rd January, 2006,State promulgated 2006 rules , against which several objections were taken and matter is sub-judice before the Apex Court in the contempt matter. With a view to remove obstacle for early implementation of the subsequent direction of the Court, fresh rules have been notified being the 2010 Rules aforesaid but the cut off date has been maintained as 23rd January, 2006.Further it is stated that in 2006 the State Government took a policy decision and framed Bihar Primary Panchayat Teacher (Appointment and Service of Condition) Rules, 2006 whereby Primary Panchayat Teacher posts were created under the local self government to be filled up by the Panchayat and local body. Thus, the vacancy of Assistant Teacher which was earlier notified as 34540 were kept separate and are to be dealt with - 3 - separately and thus selection of the cut off date as 23rd January, 2006 has a reason and rationale and is as such correct historically considering the facts aforesaid. Having heard the parties and considered the matter, in my view, petitioners challenge to the said cut off date cannot be entertained. As noted above, the State has explained the reason for selection of the aforesaid date. It is not a date that was arbitrary and without reason or rationale . The date was fixed up after due consideration of relevant facts. The date is co-terminous with the final order of the Supreme Court in SLP . It is the date prior to the framing of 2006 rules. It is a date prior to framing of Bihar Primary Panchayat Teacher (Appointment and Service of Condition)Rules, 2006. In my view, there is nothing arbitrary or illegal about the selection of cut off date. In this connection I may refer to a decision of Apex Court in the case of Union of India -Versus- Sudhir Kumar Jaiswal since reported in AIR 1994 SC 2750. Paragraphs 3 to 6 of the reports cull out the law in this regard and are quoted hereunder: ” 3. That there can be no arbitrariness in fixation of even a cut off date is not disputed before us by the learned Addl. Solicitor General who has appeared for the appellant. This stand has been correctly taken, because after Art.14 has spread its wing in the field of administrative law following what was principally held in Maneka Gandhi’s case, AIR 1978 SC 597, no stand can be taken by any administrative authority that it can act arbitrarily . Indeed, even before the decision in Maneka Gandhi, law was that no administrative authority has absolute discretion to decide a matter within its competence the way it chooses. This has been the accepted position and this Court had cited with approval what had been stated in this regard in United States –v- Wunderlich,(1951) 342 US 98, the relevant part of which reads as below:- “ Law has reached its finest moments, when it - 4 - has freed men from unlimited discretion of some ruler, some official, some bureaucrat. Absolute discretion is a ruthless master . It is more destructive of freedom than any of man’s other invention.” 3-A. Insofar as fixation of cut off date is concerned, the same can be regarded as arbitrary by a Court if the same be one about which it can be said that it has been “picked out from a hat”, as was found to be by this Court in Dr. Nim v. Union of India , AIR 1967 SC 1301, because of which fixation of 19.5.91 as the date for the concerned purpose was held to be invalid. 4. As to when choice of a cut off date can be interfered was stated by Holmes,J in Louisville Gas & E.Co. v. Coleman, (1927) 277 US 32 by stating that if the fixation be “ very wide of any reasonable mark”,the same can be regarded arbitrary. What was stated by Holmes,J. was cited with approval by a Bench of this Court in Union of India –v- Parameswaran Match Works, AIR 1974 SC 2349 in paragraph 10 by also stating that choice of a date 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. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark. 5. The aforesaid decision was cited with approval in DG Gouse and Co. v. State of Kerala, AIR 1980 SC 271; so also in State of Bihar v. Ramjee Prasad,(1990) 3 SCC 368 : (AIR 1990 SC 1300), to which decision we shall have occasion to refer later also. 6. In this context, it would also be useful to state that when a court is called upon to decide such a matter, mere errors are not subject to correction in exercise of power of judicial review; it is only its palpable arbitrary exercise which can be declared to be void, as stated in Metropolic Theatre Co v. City of Chicago, (1912) 57 Law Ed 730, in which Justice Me Kenna observed as follows:- “ It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible , the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably exercises which can be declared void….” The aforesaid was noted by this Court in - 5 - Sushma Shamra v. State of Rajasthan, AIR 1985 SC 1367, in which case also reasonability of fixation of a date for a particular purpose had come up for examination. Thus, there is no merit in this submission as made on behalf of the petitioner. No other submissions being made the writ petition is accordingly dismissed. singh (Navaniti Prasad Singh,J)