Dr.
Ami Lal Bhat Vs. State of Rajasthan & Ors [1997] INSC 565 (8 July 1997)
SUJATA
V. MANOHAR, V. N. KHARE
ACT:
HEADNOTE:
(With C.A.Nos.
3920-22/1992, 6129/1994, 3423-25/1995, C.A.Nos 4298 to 4301 of 1997 (Arising
out of SLP (C) Nos.8730/95, 10659/95, 10251/95) and C.A.Nos. 6297/95, 93/95)
MRS.
SUJATA V. MANOHAR, J.
Leave
granted.
In all
these appeals the common question which arises for consideration is whether a
Rule-making Authority can fix a cut off date with reference to the calender
year for determining the maximum age of a candidate who is to be considered for
direct recruitment to a service under the State. The petitions and appeals
before us deal with different Rules of service in the State to Rajasthan
pertaining to various services under the State. Some of the Rules which are
under challenge before us are the Rajasthan Medical Services (Collegiate
Branch) Rules. 1962. Rajasthan Panchayat Samiti and Zila parisad Service Rules
Rajasthan Class IV Services (Recruitment and other service conditions, Rules,
1963, and Rajasthan Educational Subordinate Service Rules. 1971. All these
Rules provide that the cut off date for deciding the maximum age prescribed for
a candidate for appointment will be the 1st day of January following the date
of application. The affected candidates who are before us contend that such a
cut off date which is uniformly fixed under all the Service Rules of the State
of Rajasthan, is arbitrary or unreasonable and
must be struck down.
For
the sake of convenience we are citing Rule 11(1) of the Rajasthan Medical
Services (Collegiate Branch) Rules, 1962 which came up for consideration in a
writ petition filed by Dr. Rajeev Mathur before the Rajasthan High Court.
The
Rajasthan High Court held that the portion of Rule 11 which prescribes
determination of the maximum age with reference to 1st of January following the
last date fixed for receipt of applications, was arbitrary and unreasonable and
struck it down. The appeal before us from this judgment and order is Civil
appeal No. 2691/91 which is filed by the candidate who was 2nd in the order of
merit for that particular selection. Rule 11(1) provides as follows:-
"11(1):- A candidate for direct recruitment to a junior post enumerated in
Part C of the Schedule must not have attained the age of 35 years on the first
day of January following the last date fixed for receipt of applications.
Provided:
(1)
That the upper age limit mentioned in sub-rule (1) and (2) above, may be
relaxed by 5 years in exceptional cases by Government in consultation with the
Commission." The High Court held that the words "the first day of
January following" in Rule 11(1) must be deleted.
Is
such a cut off date fixed by the Rules applicable to the relevant service,
arbitrary? It has been urged before us by the petitioners and/or appellants
that the cut off date of 1st of January following the last date fixed for
receipt of applications is arbitrary. The cut off date should only be fixed
with reference to the last date of making the application in question. It is submitted
before us that the date of 1st of January has no nexus with the application in
question and, therefore, must be struck down.
This
contention, in our view, is not sustainable. In the first place the fixing of a
cut off date for determining the maximum of minimum of minimum age prescribed
for a post of 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 an 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 i n Union of India and another etc. V. M/s. Parameswaran
Match Works etc. (AIR 1974 S.C. 2349) and has been reiterated in subsequent
cases. In the cases of A.P. Public Service Commission, Hyderabad and another v. . Sharat Chandra and
Ors. (1990 2 SCC 669) 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 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 appl and for the recruiting agency to scrutinise the
applications". This Court, therefore, held that in order to avoid
uncertainly 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 taken an
uncertain time, it is desirable that such a cut off date should be with
reference to a fixed date.
Therefore,
fixing in independent cut off date, far from being arbitrary, makes for
certainty in determining the maximum age.
In the
case of Union of India and Anr. v. Sudhir Kumar Jaiswal (1994 4 SCC 212) the
date for determining the age of eligibility was fixed at 1st of August of the
year in which the examination was to be held. At the time when this cut off
date was fixed, here used to be only one examination for recruitment. Later on,
a preliminary examination was also introduced. Yet the cut off date was not
modified. The Tribunal held that after the introduction of the preliminary
examination the cut off date had become arbitrary.
Negativing
this view of the Tribunal and allowing the appeal. This Court Cited with
approval the decision of this Court in Parmeshwar Match Works case (supra) and
said that fixing of the cut off date can be considered as arbitrary only if it
can be looked upon as so capricious or whimsical as to invite judicial
interference. Unless the date is grossly unreasonable, the court wold be
reluctant to strike down such a cut off date.
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 dependant 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 fail 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 by this court has said in the case of Parameshwaran
Match Works(supra) 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.
Learned
advocate for Dr. Rajeev Mathur in Civil Appeal NO. 2691/91 drew our attention
to Rule 8(A) of the Rajasthan Medical (Collegiate Branch) Rules, 1962. Under
Rule 8(A) as originally framed the appointing authority was required to
determine each year the number of vacancies anticipated during the following 12
months and the number of persons likely to be recruited by each method. This
rule was amended at the material time under a notification dated 21st of
February, 1981. Under the amended rule 8(A) the appointing authority shall
determine on 1st April every year the actual number of vacancies occurring
during the financial year. He contended that in the light of this rule all vacancies
must be advertised soon after they are determined. In the case in question, the
vacancy had occurred in September, 1987. It was, however, advertised only in
January, 1988. Dr. Rajeev Mathur became over aged on 1st of January of the
following year. It was submitted that had the vacancy been advertised in 1987,
the cut off date would have been the 1st of January 1988, and Dr. Rajeev Mathur would have been eligible.
In the
first place. While construing the validity of any given Rule, we cannot decide
the reasonableness or unreasonableness of that rule by looking at borderline
cases. There is no allegation that the advertisement was deliberately postponed
to eliminate Dr. Rajeev Mathur or that there was any deliberate delay in
advertising the post.
The
delay between September and the following January cannot be considered as
unreasonable. Rule 8(a) is merely for the purpose of determining the actual
number of vacancies occurring during the financial year. It does not cast any
obligation on the appointing authority to issue an advertisement within any
specific time for recruitment to such a vacancy. so long as such an
advertisement is issued within a reasonable time, and there is no mala fide
delay, the action of the appointing authority in issuing the advertisement
cannot be challenged simply because the maximum age qualification is fixed with
reference to a fixed date.
It is
next contended on behalf of the appellants/petitioners that under all the
concerned service rules there is a provision for age relaxation. In Rule 11(A)
of the Rajasthan Medical Services (Collegiate Branch) Rule, there is a
provision for age relaxation by 5 years by the Government in consultation with
the commission. There is also Rule 35 in the said Rules which gaves a general
power to relax rules in exceptional cases where the Government is satisfied
that it is necessary, inter alia, to relax any provision of these Rules with
respect to age or experience of any person and this can be done with the
concurrence of the Department of Personnel and Administrative Reforms and in
consultation with the Rajasthan Public Service Commission. It is urged that in
the case of all those persons who are adversely affected because the
advertisement for recruitment is issued later than the occurrence of the
vacancy. Corresponding age relaxation should be given to all candidates. In
other words, what is contended is that if on the date when the vacancy
occurred, the candidates were within the maximum age prescribed by reference to
the cut off date, the if the advertisement is delayed, their age should be
considered with reference to the cut off date of 1st January following the date
of occurrence of vacancy.
For
example, if the vacancy has occurred on 1st of April of a given year, and the
applicant would be within the maximum age on the 1st of January of the
following year, then such a candidate will be considered as eligible even if
the advertisement is issued not n April of that year but say February of the
following year. All the candidates will get age relaxation of one year.
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 the maximum age of a candidate. It might be unfair to be 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.
In the
premises we do not see any reason to set aside the cut off date fixed by the
relevant rules. The judgments of the Division Benches of the Rajasthan High
Court in so far as they strike down 1st of January of the following year as the
cut off date for determining the maximum age of a candidate for selection,
require to beset aside.
Of the
various judgments of the Rajasthan High Court which are before us, it is
necessary to note that a Division Bench of the Rajasthan High Court, differing
from the view taken by the earlier Division Benches referred this question to a
Full Bench of the Rajasthan High Court in the case of Surinder Singh v. The
State of Rajasthan (1995 1 WLR 197).
The
Full Bench of the Rajasthan High Court overruled the earlier judgments of the
two Division Benches of the Rajasthan High Court and upheld the relevant
service Rules.
We
agree with the reasoning and conclusion of the Full Bench of the Rajasthan High
Court.
It
was, however, pointed out to us by the third respondent (Dr. Rajeev Mathur) in
C.A. No. 2691/1991 that from the decision of the Division Bench of the
Rajasthan High Court in his own case (Dr. Rajeev Mathur v. The State of Rajasthan) the Rajasthan Public Service
Commission filed a Special leave petition before this Court being Special Leave
Petition No. 6931 of 1991. In the Special Leave Petition, on 30th of April,
1991 this Court passed the following order :- "We express on view on the
question of law raised but on facts found we decline to interfere. The Special
Leave Petition is dismissed." It is contended by Dr. Mathur that in view
of the dismissal of the Special Leave Petition filed by the Rajasthan Public
Service Commission, the decision of the Division Bench of the Rajasthan High
Court in the case of Dr. Rajeev Mathur v. The State of Rajasthan has become final and cannot be set
aside. Hence the appointment of Dr. Rajeev Mathur cannot now be challenged. Dr.
Rajeev Mathur was over age on the 1st of January of the year following the
dated of application. And his application was rejected by the Rajasthan Public
Service Commission on the ground that he was over age. Immediately he preferred
a writ petition before the Rajasthan High Court. In the writ petition he
averred that his case was being considered by the Government of Rajasthan for
age relaxation. The High Court, under an interim order, directed the Rajasthan
Public Commission to consider his application and interview Dr. Rajeev Mathur.
Accordingly
he was interviewed. His application for age relaxation has been rejected by the
Rajasthan Public Service Commission as well as by the State. But in view of his
being interviewed, his case was considered and he was selected.
His
position was 1st in the merit list. The High Court has directed that he should
be appointed. Does the dismissal of special leave petition filed by the
Rajasthan Public Service Commission against this decision make this decision
final as far as Dr. Mathur is concerned ? In order dismissing the special leave
petition this Court has left the question of law open. But what is more
relevant, the candidate who was second in the merit list in that case also
thereafter filed a special leave petition before this Court from the same
judgment. He was granted leave and his appeal in numbered as C.A. 2691/1991.
This appeal, which before us, directly challenges the appointment of Dr. Rajeev
Mathur and the High Court judgment under which he is appointed. If Dr. Rajeev Mathur
is not eligible, then the appellant in this appeal is entitled to be appointed
to that post. Therefore, at the instance of the Rajasthan Public Service
Commission this Court was not inclined to examine the merits of the individual
case before it; though it left the question of law open. But when the affected
candidate came up before this Court asking for special leave to appeal against
the same judgment of the Division Bench, leave was granted and the appeal has
been entertained. It is, therefore, not possible to hold that the decision of
the Division Bench of the Rajasthan High Court in the case of Dr. Rajeev Mathur
v. The State of Rajasthan is final on the facts of the case
and the appointment of Dr. Rajeev Mathur cannot be challenged.
This
appointment is directly under challenge in C.A. No. 2691/1991 which require to
be considered and decided on merit. Therefore, we do not see any reason to make
any exception in the case of Dr. Rajeev Mathur.
Lastly,
in the appeal arising from Special Leave Petition No. 10659 of 1995, the
respondent contended that he was in fact not over age on the cut off date which
was, in that case 1st of January, 1992. The contention was raised on a wrong
reading of the date of birth. It is now accepted by the parties that the
correct date of birth of the petitioner in that case was 1st of January, 1959
and not 19th January
1959 as originally
urged. The petitioner would, therefore, complete 33 years of age which was the
maximum age prescribed in the concerned advertisement, on 1st of January 1992,
the cut off date. His case, therefore, is not different from the case of other
aggrieved candidates before us who are age barred on the cut off date.
In the
premises the appeals of the candidates who have challenged the cut off date
under the relevant Rules are dismissed while the appeal filed by the State of Rajasthan are allowed. The validity of the
concerned Rules relating to the cut off date being fixed with reference to 1st
January of the year following the application is upheld. There will be no order
as to costs.
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