UNION OF INDIA AND ANR.

SUDHIR KUMAR JAISWAL

MAY 4, 1994

[KULDIP SINGH AND B.L. HANSARIA, JJ.]

Service Law : Civil Services Examination for appointment to IAS, IFS etc.-<:ut of date of determining age limit [u:ed as on !st August of the relevant yeQl'-ffeld : not arbitrary.

Executive instruction cannot override statutory provision.

Practice and Procedure-<:ontrary decisions by same Bench of Tribunal -£artier decision based on apex couTt's judgment-Reference to larger Bench called fol"-Refusal to do so not justified.

The minimum and maximum age for the purpose of eligibility to take up the Civil Services Examination conducted by Union Public Service Commission was to be determined as on 1st of August of the year in which the examination was conducted. This cut off date was fixed when only one written examination used to be conducted after 1st August. Even after the E introduction of Preliminary Examination which is normally held before 1st August, the cut off date continued to be 1st August.

The cut off date was challenged before the Central Administrative Tribunal and the Tribunal held it to be arbitrary, though the same F Tribunal upheld the cut off date in its earlier decision. Against this decision, the Union of India and UPSC have come in appeal.

Allowing the appeal, this Court

HELD : 1. It is settled law that no administrative authority has G absolute discretion to decide a matter within its competence the way it chooses. (889-D]

Maneka Gandhi v. Union of India, A.I.R. (1978) SC 591 and United States v. Wunderlich, (1951] 342 US 98, referred to.

2. Insofar as fixation of cut off date is concerned, the same can be

U.0.I. v. S.K. JAISW AL 887

\ regarded as arbitrary by a Court if the same be one about which it can be A said that it has been "picked out from a hat". [K89-F)

Dr. Nim v. CS. Prasad, A.l.R.(1967) S.C. 1301, relied on.

3. It cannot be held that continuation of treating 1st August as the cut off date, despite the Union Public Service Commission having intro- B duced the method of Preliminary examination which is normally held before first August, can be said to be "very wide of any reasonable mark" or so capricious or whimsical as to permit judicial interference. (891 B)

Union of India v. Panneswaran Match Works, A.1.R. (1974) S.C. 2349; c D.G.Gouse and Co. v. State of Kera/a, (1980) A.l.R. S.C. 271 and State of Bihar v. Ramjee Prasad, [1990) 3 S.C.C. 368, relied on.

Louisville Gas & E.Co. v. Coleman, (1927) 277 US 32, Metropolic 171eatre Co. v. City of Chicago, [1912) 57 L Ed 730 and Sushma Shamia v.

State of Rajasthan, A.l.R. (1986) SC 1367, referred to.

4. What is stated in the ollice Memorandum issued by the Govern • ment of India un 4.9.1979, which is executive in nature, cannot override the statutory provisions finding place either in Regulation 4(b)(ii) of !AS (Appointment by Competitive Examination) Regul_ations, 1955 or Rule E 6(a) of Civil Services Examination Rules, 1992. This is so elementary a point that an adjudicatory body like the CAT could not have, in any case , was not expected to have, made the mistake of relying on the same as it runs couµter to the aforesaid statutory provisions. Moreover, the aforesaid Office Memorandum came to be explained by another Office • Memorandum of 14.7.88, which has made it clear that insof3r as civil F .. service examinations are concerned, it is the latter date which is crucial in

~ between two dates, namely, 1st January and 1st August. So, no reliance could have been placed on what had been stated in this regard in the Office Memorandum of 4.9.79. (891·0-E)

5. The Bench of CAT ought to have referred the matter to a larger G

Bench because of two decision of that Bench itself taking a different view; more so, as it was deciding a point relating to conduct of examination by an important body like Union Public Service Commission and that also for examinations conducted for selecting IAS and IFS Officers. The refer~ ence to larger Bench was eminently called for because the earlier decisions H

A of the Tribunal were based on the judgment of this Court in Ramjee Prasad's case in which the reasonableness of cut off date examined, related to filling up posts, as in the present case. [892-B-C]

Mohan Kumar Singhania v. Union of India, [1992] Supp. 1 S.C.C. 594, distinguished.

State of Bihar v. Ramjee Prasad, [1990] 3 S.C.C. 368, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2347 of 1994.

From the Judgment and Order dated 25.11.93 of the Central Administrative Tribunal Allahabad Bench, Allahabad in Original Application No. 91 of 1992.

V.R. Reddy, Addi. Solicitor Genera!, Heman! Sharma and C.V.S.

Rao for the Appellants.

R.K. Jain, G. Subramaniam and Pradeep Misra for the Respondent.

The Judgment of the Court was delivered by :

HANSARIA, J. !st of August of the concerned year has been fixed as the date with reference to which the eligibility of persons desirous of sitting in competitive examination for recruitment to the Indian Administrative Service/Indian Foreign Serv!ces etc., qua their age for which both minimum and maximum is normally fixed, is being determined. This cut off date had been fixed when the Union Public Service Commission had been conducting only one written examination which used to be normally after the 1st August. The Commission, however, felt the necessity of holding a preliminary examination which normally takes place before 1st day of August. Even so, the eligibility of the applicant, regarding satisfaction of the age requirement continued to be ascertained with reference to his age as on 1st August of the concerned year.

2. The aforesaid cut off date came to be challenged before various Central Administrative Tribunals, one of which is Central Administrative Tribunal at Allahabad. The Tribunal in its earlier decisions rendered, inter

a/ia, in OA No. 778/91and881/91on19.9.91 did not find anything arbitrary in taking 1st August as the cut off date despite holding of the preliminary

" ..

U.0.1. , .. S.K. JAiSWAL [HAN SAR IA, .l.J 889

examination before that date. Indeed. in t\VO ()As \Vhich had been fih:d by A the respondent hi1nself before the aforesaid Tribunal which were registered as OAs 1681'!0 an<l 1161/92 an<l came lo be <lcci<lc<l on 7.5.93, the Tribunal had not accepted the contention of the respondent that fixation of lst August was arbitrary. A different vic\v has, hu\vcver: been taken in the present impugned judgment by the same Tribunal by holding that Isl of August as the cut off date is arbitrary. the appcll<Jnts, namely, the Union of India and the Union Public Service c:ommission have assailed the legality of this decision.

3. That there can be no arbitrariness in fixation of even a cut off date

is not disputed before us by the learned Addi. Solicitor General who has C appeared for the appellant. This stand has been correctly taken, because after Article 14 has spread its wing in the field of administrative law following what was principally held in Maneka Gandhi's case, AIR (1978) SC 591, 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 D 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] US 98, the relevant part of which reads as below :

"Law has reached its finest moments, when it has freed men from unlimited discretion of some ruler, some official, some bureacurat. Absolute discretion is a ruthless master. It is more destructive of freedom than any of man's other invention."

3. Insofar as fixation of cut off date is concerned, the same can be F regarded arbitrary by a Court if the same be one about which it can be said that it has been "picked out from hat", as was found to be by this Court in Dr. Nim v. CS Prasad, AIR (1967) SC 1301, because of which fixation of 19.5.91 as the <late for the concerned purpose was held to be invalid.

4. As to when choice of a cut off date can be interfered was opined G by Holmes, J. in Louisville Fas & 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 observed by Holmes, J. was cited with approval by a Bench of this Court in Union of India\·. Paranieswaran /'.1atch Works, AIR (1974) sc 2349 in paragraph 10 by also stating that choice of H

SUPREME COURT REP OR TS

[1994] 3 S.C.R.

A a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming 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 Kera/a, (1980) AIR SC 271; so also in State of Bihar v. Ramjee Prasad, [1990] 3 SCC 368, to which decision we shall have occasion to refer later also.

6. Jn 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 L Ed. 730 in which Justice Mc D Kenna observed as follows :

nit may seero 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 Sushma Shamia v. State of Rajasthan, AIR (1986) SC 1367, in which case also reasonability of fixation of a date for a particular purpose had come up for examination.

7. Having known the legal parameters within \vhich we have to function, let it be seen whether fixation of 1st August as cut off date for G determining the eligibility of applicants qua their age can be held to be arbitrary despite preliminary examination being conducted before that date. As to why the cut off date has not been changed despite the decision to hold preliminary examination, has been explained in paragraph 3 of the Special Leave Petition. The sum and substance of the explanation is that H preliminary examination is only a screening test and marks obtained in this

U.0.1. v. S.K..TAISWAL [HANSARIA.J.J 891

examination do not count for determining the order or merit, for which A purpose the marks obtained in the main examination, which is still being held after 1st August, alone re material. In view of this, it cannot be held that continuation of treating 1st Augusl as the cut off date, despite the Union Public Service Commission having introduced the method of preliminary examination \vhich is held before first August, can be said to be

1'very wide of any reasonable mark'' or so capricious or whimsical as to permit judicial interference.

8. Let it now be seen as to why the Bench in the impugned judgment

despite the earlier decisions referred earlier, has accepted the case of the respondent. A rerusal of the judgment shows that the Bench relied on an C Office Memorandum issued by the Government of India on 4.9.79 to come to its decision. It is enough to observe that what is stated in this memorandum, which is apparently executive in nature, cannot override the statutory provisions finding place either in regulation 4(B)(ii) of !AS (Appointment by Competitive Examination) Regulations, 1955 or Rule 6(a) of Civil D Services Examination Rules 1992. According to us, this is so elementary a point that an adjudicatory body like the CAT cnuld not have, in any case was not expected to have, made the mi.stake of relying on the same as it runs counter to the aforesaid statutory provisions. This is not all. The aforesaid Office Memorandum came to be explained or modified by another Office Memorandum of 14.7.88, which has made it clear that insofar as civil service examinations are concerned, it i~ the later date which is crucial in between two dates, namely, 1st January and 1st August. So, no reliance could have been, in any case, placed on what had been stated in this regard in the Office Memorandum of 4.9.79.

9. Shri Jain, learned counsel for the respondent, being conscious of the weakness of the legal stand taken by the Tribunal, urged that equity should come to the respondents' assistance because of the view taken by

this court is Mohan Kumar Singhania's case, 11992] Supp. l SCC 594, to which the Tribunal has also referred in its judgment. We have applied our G mind to this aspect. We arc not persuaded to agree with Sh. Jain, because what happened in Singhania's case was different. We have taken this view also because the impugned judgment has left room to think it was inspired by some oblique-motive. Though in putting this on record, we have not felt happy but we have felt called upon to do so became the Allahabad Bench itself of the CAT had rejected the self-same contention of the respondent H

himself in the t\vo OAs referred earlier. [n view of this, the present Bench \Vas not justified in refusing to make a reference to a larger Bench to decide the point lo which effect a prayer had been made by the appellants. The Bench ought to have referred the matter to a larger Bench also because of two decisions of that Bench itself taking different view, more so, as it was deciding a point relating to conduct of examination by an important body like Union Public Service Commission, and that also for examinations conducted for selecting IAS and IFS Officers. The reference to larger Bench was eminently called because the earlier decisions of the Tribunal were based on the Judgments of this Court in Ramjee Prasad's case in which the reasonableness of cut off date examined related to filling up posts, as in the case at hand.

10. For the aforesaid reasons, equity does not demand any favour to be shown to the respondent. The result is that appeal is allowed with costs by setting aside the impugned order of the Tribunal. Cost assessed as Rs. 10,000. The respondent would not be treated or deemed to have passed the examination in question and whatever benefit of the same was given to him pursuant to Tribunal's directions shall stand cancelled.

G.N.

Appeal allowed.