The fixation of an upper age limit until which the benefit would be available is, not irrational: Delhi High Court

33IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 10411 2021 Date of Decision: November 12 2021 KETAN KUMAR & ANR. Petitioner Through: Mr. Puneet Kumar Verma Adv. UNION OF INDIA & ANR. Respondents Through: Mr. Vikrant N. Goyal Mr. Neeraj Kumar and Mr. Vedansh Anand Advs. for R 1 and R 2. Mr. T. Singhdev alongwith Mr. Bhanu Gulati Advs. for R 3 HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT PRATEEK JALAN J.The proceedings in the matter have been conducted through video conferencing. CM APPL. 39997 2021in W.P.(C) 10411 2021 This is an application on behalf of the petitioners for early hearing of the writ petition. For the reasons stated the application is allowed and the writ petition is taken up for hearing with the consent of learned counsel for the parties. W.P.(C) 10411 2021 Digitally Signed By:SHITUNAGPALSigning Date:15.11.202123:01:46Signature Not Verified W.P.(C) 10411 2021 The petitioner No. 1 is the son of an ex serviceman i.e. the petitioner No. 2 herein. He aspires to gain admission in a medical course and seeks issuance of a “CW certificate” by the respondent No.1 Union of Indiaand the respondent No. 2 Kendriya Sainik Board category for which the respondent No. 3 National Medical Commission has prescribed the maximum age of 30 years for application to medical courses. In the face of such a stipulation by the NMC Mr. Verma submits that it is wholly irrational for a person who is admittedly the ward of an ex serviceman to be denied the benefit of CW category reservation only because he has crossed the age of 25 years. 4. Mr. Verma has drawn my attention to an extract of an W.P.(C) 10411 2021 Digitally Signed By:SHITUNAGPALSigning Date:15.11.202123:01:46Signature Not Verified Information Bulletin issued by the University of Delhiwhich shows that 5% reservation is available for CW category candidates subject to their having an educational concession certificate issued by the enumerated authorities which include the KSB and the Ministry of Home Affairs Government of India. The order of preference in which candidates would be considered is also enumerated in the aforesaid extract in which the petitioner No. 1 falls within Category V “Wards of serving ex servicemen personnel including personnel of police forces who are in receipt of Gallantry Awards”. Mr. Verma submits that the KSB has issued a notification wherein applications were invited for admission to medical colleges for sons daughters widows of Armed Forces personnel. In the instructions which accompanied the said notification Mr. Verma relies upon Clause 2(p) which states as follows: “Instructions given above are to be used as guidelines only these are subject to change without notice as per Medical Council of India Ministry of Health rulings issued from time to time.” 5. Mr. Vikrant N. Goyal learned counsel for the Union and the KSB submits that the Union has fixed the upper age limit of 25 years for issuance of educational concession certificates for children and wards of Armed Forces personnel as a policy decision which does not warrant interference of the writ court. He submits that such a decision is consistent with the definition of “Dependent” contained in the notification dated 13.04.1993 which concerns the establishment of the Armed Forces Flag Day Fund. 6. Mr. T. Singhdev learned counsel for the NMC submits that W.P.(C) 10411 2021 Digitally Signed By:SHITUNAGPALSigning Date:15.11.202123:01:46Signature Not Verified although the NMC has relaxed the age limit for admission as far as OBC category candidates are concerned this does not imply a mandate upon the Government to extend the same age limit in respect of CW category reservations. Having heard learned counsel for the parties I am of the view that the decision taken by the respondents is a policy decision which does not display any such arbitrariness or unreasonableness as to merit the intervention of the writ court. Reservation in respect of OBC category students and CW category students are separate categories of reservations. The age limit fixed by the NMC for OBC candidates is 30 years and that remains available to the petitioner No. 1. As recorded above the NMC itself does not suggest that the same age limit must be applied to CW category candidates also. The petitioner No. 1 effectively seeks a direction that the benefit available to him in the CW category must also be extended until the age of 30 years. These benefits are intended to benefit the families of ex servicemen. The fixation of an upper age limit until which the benefit would be available is in my view not irrational. For the Government to take a decision that the benefit to servicemen’s families would be maximised if candidates avail of the benefits at an earlier age is within the realm of a policy decision. The interference of the writ court with such policies is extremely limited as reiterated by the Supreme Court in the recent decision in Rachna and Others vs. Union of India and Another5 SCC 638 in the following terms: 43. It is the settled principle of law that policy decisions are open for judicial review by this Court for a very limited W.P.(C) 10411 2021 Digitally Signed By:SHITUNAGPALSigning Date:15.11.202123:01:46Signature Not Verified purpose and this Court can interfere into the realm of public policy so framed if it is either absolutely capricious totally arbitrary or not informed of reasons and has been considered by this Court in Union of India v. M. Selvakumar3 SCC 504. The relevant portion is as under:— “47. There is one more reason due to which we are unable to subscribe to the view taken by the Madras High Court and Delhi High Court. The horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination is a matter of Governmental policy and the Government after considering the relevant materials has extended relaxation and concessions the Physically Handicapped candidates belonging to the Reserved Category as well as General Category. It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and non informed by reasons or totally arbitrary offending the basic requirement of Article 14 of the Constitution. SCC Online SC 254 paragraph 23): 2019SCALE 752: “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 W.P.(C) 10411 2021 Digitally Signed By:SHITUNAGPALSigning Date:15.11.202123:01:46Signature Not Verified 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.” 10. For the reasons aforesaid I am unable to accept the case made out by the petitioners. The writ petition is therefore dismissed but without any order as to costs. NOVEMBER 12 2021 PRATEEK JALAN J. W.P.(C) 10411 2021 Digitally Signed By:SHITUNAGPALSigning Date:15.11.202123:01:46Signature Not Verified 

Summary: The fixation of an upper age limit until which the benefit would be available is, in my view, not irrational. For the Government to take a decision that the benefit to servicemen’s families would be maximised if candidates’ avail of the benefits at an earlier age is within the realm of a policy decision. The interference of the writ court with such policies is extremely limited as upheld by the Hon’ble Supreme Court through the learned bench led by Hon’ble Mr. Justice Prateek Jalan in the case of Ketan Kumar &amp; Anr. v. Union of India &amp; Anr. (W.P.(C) 10411/2021). The brief facts of the case are that the petitioner No. 1 is the son of an ex-serviceman, i.e., the petitioner No. 2 herein. He aspires to gain admission in a medical course and seeks issuance of a “CW certificate” by the respondent No.1-Union of India and the respondent No. 2-Kendriya Sainik Board. The CW certificate is issued to children and wards of Armed Forces personnel, for whom seats are reserved or priority admissions are available in various educational institutions. The grievance of the petitioners is that the KSB has, by way of a communication dated 17.12.2020, declined to issue a CW certificate to the petitioner No. 1 as he is more than 25 years old. The impugned communication records that the petitioner No. 1 cannot be termed as a “dependent” of the petitioner No. 2 beyond the age of 25 years. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “The fixation of a cut off age does sometimes occasion hardship upon a particular category of applicants or candidates. Although there is some randomness in the fixation of a cut off age, by its very nature, that is not sufficient to characterize it as an arbitrary or unreasonable decision. For the reasons aforesaid, I am unable to accept the case made out by the petitioners. The writ petition is, therefore, dismissed.”