Arjun Singh & Ors. vs State of J&K & Ors.

This batch of writ petitions involving similar nature of controversy, shall stand disposed of vide this common order.

The short point, raised in all these petitions and which needs consideration is as to whether the Government is right in its decision to fix the cutoff

date so far as the minimum age is concerned while making selection to a post under the State.

The facts in brief be noticed as under:

RespondentJ&K Public Service Commission (hereinafter referred to as the Commission) issued an advertisement notice No PSC/EXM09/46 dt.

30th of Dec '08, inviting applications for the Jammu and Kashmir Combined Competitive (preliminary) Examination, 2009, for direct recruitment to

the posts in the pay scale of Rs. 750012000/ in three different services i.e. Junior Scale of J&K Administrative Service; J&K Police (Gazetted)

Services and J&K Accounts (Gazetted) Services. A total number of 398 vacancies were to be filled up in these three Services under different

categories, break up of which has been given in the advertisement notice aforementioned. The eligibility criteria as fixed in the advertisement notice

is that a candidate should possess a Bachelor's Degree in any subject from a recognized University in India or from a Foreign University declared

to be an equivalent degree of a recognized Indian University. The candidates who have appeared in any examination for the above degree and

whose results are still awaited have also been made eligible to apply for the aforementioned post subject to their having cleared the said degree

examination at the time of appearing in the Combined Competitive (Main) Examination.

So far as the age criteria is concerned, a candidate should be 21 years and must not have attained the age of 35 years as on 1st of Jan '08. So

far as upper age limit is concerned that has been mentioned as relaxable by 5 years i.e. fixed at 40 years for those candidates, belonging to

Scheduled Caste/Scheduled Tribe/Other Backward Classes or if a candidate is handicapped as defined in SRO 294 dated. 29th of Oct '05, or if a

candidate is applying as an in service candidate holding a civil post in the State in a substantive capacity or in a temporary capacity continuously for

at least three years.

It is the fixation of the aforementioned minimum age limit of 21 years as on 1st of Jan'08, which is being thrown to challenge in the present

petitions. Rule 5(ii) of SRO 387 dt. 1st of Dec '08, which lays down the above condition of minimum age limit of 21 years as on 1st of January of

the year in which the notification is issued which is sought to be quashed.

Mr. Sunil Sethi, learned Senior counsel appearing for some of the writ petitioners submitted that the method and manner in which the power has

been exercised by the respondentState in prescribing the minimum age limit by fixing a particular cut off date is arbitrary as it is not in the interest of

those students who were not 21 years of age as on 1st of Jan '08 but have attained this age even after one day of the said cutoff date and are also

fulfilling the criteria so far as educational qualification is concerned. It is stated that even the act of the State in prescribing such a minimum age

criteria can be termed as violative of ""principles of natural justice. By laying emphasis on Rule 37 of the Jammu and Kashmir Civil Services

Regulations, it is stated that so far as Kashmir Administrative Service, Kashmir Police Service, Kashmir Forest Service and Kashmir Accounts

Service is concerned, the minimum and maximum age limit for direct recruitment to these services is to be governed by the recruitment rules of the

respective services.

Mr. H.A. Siddiqui and Mr. Abhinav Sharma learned counsel for some of other petitioners also made submissions to the above effect. By

placing reliance on Rule 7 of the SRO 387 aforementioned, it is stated that a candidate seeking admission to the Preliminary examination has to

fulfil all the eligibility conditions including the age criteria as on the last date of submission of application form. It is thus submitted that the

respondent State cannot fix a cut off date prior to the last date of submission of application forms so far as the eligibility of age criteria is

concerned. When it has not done so regarding eligibility of educational qualification. The arbitrariness and malafide on the part of respondent State

is also projected on the basis of the impugned notification itself by stating that the same has been issued on 30th of Dec '08. It is stated that had the

notification been issued after one day i.e. on 1st of Jan '09, or even thereafter, the petitioners would have fulfilled the minimum age criteria and

would have become eligible to sit in the preliminary examination.

Learned counsel for the petitioners while making the aforementioned submissions have also drawn my attention to some of the notifications

issued by the Union Public Service Commission wherein the possession of eligibility criteria has been related to the last date of submission of

application forms. It is thus submitted that the respondentState should also adopt a uniform policy in the matter of making appointment as has been

done by the Union Public Service Commission by fixing the fulfillment of eligibility conditions for admission to the preliminary examination on the

last date of submission of forms. It is also submitted that the State Government may be directed to relax the minimum age criteria so that the

petitioners are also able to compete with others. It is stated that the respondent State by such an act, may be able to invite a healthy competition

and may select more suitable candidates.

Mr. D.C. Raina, learned senior counsel appearing for the Commission has pointed out that the respondent State in its wisdom and in exercise of

powers conferred upon it under the provisions of Section 124 of the Constitution of the Jammu and Kashmir, has framed the rules in terms of SRO

387 dt. 1st of Dec'08, whereby the minimum and maximum age criteria for Jammu and Kashmir Combined Competitive Examination has been

fixed, which cannot be termed as ultravires or bad in law. It is stated that the notification impugned has been issued strictly in terms of the

provisions of the aforementioned SRO, and therefore, the petitioners have to fulfil the eligibility conditions as prescribed in Rule 5 of the said SRO.

It is stated that had the notification been issued on 1st of Jan'09 or thereafter, then the cut off date regarding minimum age criteria as per Rule 5

would have been fixed as 1st of Jan'09, but keeping in view the fact that the services to which the appointments are to be made are special

services and the matter was directed to be treated as of emergent nature by the .General Administration Department, Government of Jammu and

Kashmir, the process was initiated immediately after the vacancies were referred to the Commission. In support of his submission, the learned

senior counsel has produced a communication dt. 18th of Dec'08, written by the Deputy Secretary to the Government, General Administration

Department addressed to the Secretary, J&K Public Service Commission, Jammu. It is stated that thereafter completing the requisite

administrative formalities within a short span of about ten days, the notification impugned was issued on 30th of Dec'08. It is thus stated that

promptness had to be shown by the Commission in the matter of initiating the process of selection to the above posts, in view of the urgency

expressed by the General Administration Department, and therefore, issuance of the notification on the last dates of month of Dec'08, cannot be

termed to be arbitrary or malafide act on the part of the Commission or in respondent State itself. It is thus stated that the petitioners cannot have

any grievance as they, have to meet and fulfil the eligibility criteria so far as the minimum age is concerned in terms of Rule 5(ii) of the

aforementioned SRO.,

I have heard learned counsel for the parties and perused the record.

Before considering the rival contentions of both the parties, it would be appropriate to notice some of the relevant provisions on which reliance

has been placed by both the sides.

Rule 37 of the Jammu and Kashmir Civil Service Regulations, on which reliance has been placed by the learned counsel for the petitioners in

so far as relevant reads as under:

37.(1) Except in the case of direct recruits to (i) Kashmir Administrative Service (ii) Kashmir Police Service (iii) Kashmir Forest Service (iv)

Kashmir Accounts Service, in which case the minimum and maximum age limits for recruitment, will be governed by the recruitment rules of the

respective services, the age of direct recruits to Government service in the rest of subordinate and Gazetted services shall on the first day of

January of the year in which the competitive examination is held or the nomination is made in respect of the vacancy to which the direct recruitment

is made, shall not be less than 18 years and shall not exceed SOyears........................

SRO 387 dt. 1st of Dec'08, referred to above, deals with the rules relating to the conduct of combined competitive examination by the

Commission. Rule 5 of the said SRO lays down the eligibility conditions and Sub rule (ii) of R.5 prescribes the age criteria. The above rule in so far

as relevant is being reproduced below:

Conditions of eligibility:

In order to be eligible to compete in the examination, a candidate must satisfy the following conditions, namely:

(II) that he has attained the age of 21 years but not attained the age of 30 years on 1st January of the year in which notification inviting applications

is issued by the Commission:.......................................................................

Rule 7 of SRO 387, which has also been relied upon reads as under: ""7. Certificates to be produced:

Candidates for the preliminary examination shall submit along with their application forms prescribed fee and attested copies of certificates in

support of their claims regarding age, educational qualification, certificate of belonging to a reserved category and holding of a civil post in the State

which will be verified by the Commission, at the time of preliminary examination only. They shall, ensure that they fulfill all the eligibility conditions

for admission to the preliminary examination on the last date fixed by the Commission for receipt of application forms. The admission to the

preliminary examination shall be purely provisional and if on verification at any later date, it is found that the candidate had claimed eligibility for

such examination by misrepresentation, fraud or concealment of any material fact or impersonation, his candidature shall be cancelled and he will

be liable to prosecution/disciplinary action by the Commission. The candidates who are declared by the Commission to have qualified for

admission to the main examination will have to apply again along with prescribed application form, whicn would be Available in the Commission.

A perusal of Rule 37 of the Jammu and Kashmir Civil Service Regulations noticed above shows that for direct recruitment to the Kashmir

Administrative Service, Kashmir Police Service, Kashmir Forest Service and Kashmir Accounts Service, the minimum and maximum age limit has

to be as per the recruitment rules of the respective services. While framing the Rules under SRO 387, referred to above, which deals with the rules

regarding conduct of combined competitive examinations by the Commission, out of the four services mentioned in Rule 37 of the Regulations

aforementioned, three services i.e. Junior Scale of J&K Administrative Service, J&K Police (Gazetted) Service and J&K Accounts (Gazetted)

Service, which as per the learned counsel for the petitioners are the same services as mentioned in Rule 37 above noticed, have been kept within

the purview of SRO 387 so far as process of direct recruitment to these three services is concerned. The candidates seeking appointment/direct

recruitment to these three services, thus, shall have to fulfill the conditions of eligibility in terms of Rule 5 of SRO 387 so far as educational

qualification, minimum and maximum age limit is concerned and as sub Rule (ii) of Rule 5 noticed above, lays down the minimum age limit of 21

years as on 1st day January of the year in which the advertisement notice is issued, anyone not fulfilling the said age criteria cannot be said to have

become eligible for the purposes of applying to appear in the preliminary examination to be held by the Commission for recruitment to the above

services.

So far as Rule 7 of the SRO 387 noticed above is concerned, a plain reading of the same shows that the candidates applying for the

preliminary examination have to fulfil the requisite eligibility conditions and submit the certificates in this regard on the last date fixed by the

Commission for the purpose of receipt of applications forms. A cojoint reading of Rule 5(ii) and 7 noticed above shows that so far as eligibility is

concerned, a candidate has to fulfil the said eligibility criteria in terms of Rule 5(ii) so far as minimum age is concerned and as on 1st of January of

the year in which the notification is issued, he/she should be minimum 21 years of age and it is only after fulfilling the said eligibility criteria, he/she

has to submit the requisite certificates on the last date of submission of application forms. It is not that a candidate who becomes 21 years of age

on 2nd of January of the year in which the notification is issued or thereafter, that he/she becomes eligible to apply. The eligibility criteria so far as

minimum age limit of 21 years is concerned have to relate back to the cut off date fixed as per Rule 5(ii). Rule 7 only prescribes that a candidate

applying for the preliminary examination should be possessed of the requisite certificates regarding age criteria, educational qualification, certificate

of belonging to a reserved category and holding of a civil post in the State on the last date of submission of application forms. The only

interpretation, thus, which can be drawn from the perusal of Rule 7 is that if a candidate even though is eligible in terms of Rule 5 of SRO 387 but

is not possessing the requisite certificates on the last date of submission of application form, his/her candidature cannot be accepted. Any other

interpretation of Rule 7, in my view, would upset the very purpose and object of Rule 5(ii) of the SRO aforementioned.

In the present case, as the notification impugned is issued on 30th of Dec '08, the petitioners have to be possessed of the requisite certificate

that they are 21 years of, age as on 1st of Jan '08, as per Rule 5(ii) and this certificate shall have to be deposited on or before the last date of

submission of application forms before the Commission as per Rule 7 noticed above. The petitioners, in the case in hand, who admittedly have

attained the minimum age criteria after the cut off date fixed in the impugned notification cannot, by any stretch of imagination, be said to be eligible

for applying for the services in question in terms of Rule 5(ii), and thus, their candidature cannot be directed to be considered by the Commission.

In Shankar K. Mandal and others v. State of Bihar and ors, (2003)9 SCC 519, the Apex Court, while dealing with a matter regarding fixing of

a cut off date has laid down the following principles:

(1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date

appointed by the relevant service rules.

(2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for

applications.

(3) If there is no such date appointed by the rules then such date shall be applied by reference to the last date appointed by which the applications

were to be received by the competent authority.

In the present case, the cut off date fixed as per rule 5(ii) noticed above, is the 1st of January, 2008, so far as the minimum age is concerned,

which has to be taken into consideration and the petitioners who are seeking public employment and not fulfilling the said criteria cannot be

directed to be considered for the said employment.

In Ashok Kumar Sonkar v. Union of India and others, (2007) 4 SCC 54, the Apex Court has held as under:

Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the

employer would be flooded with applications of ineligible candidates. A cutoff date for the purpose of determining the eligibility of the candidates

concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held

by this court would be the last date for filing the application.

In the case in hand, the Rules prescribe a cut off date so far as possession of minimum age criteria is concerned. This criteria has to be adhered

to and merely because someone has not been able to fulfil this criteria, the same cannot be held to be bad in the eyes of law. By laying down such

a criteria, it may be possible that some one might have lost his/her chance of appearing in the preliminary examination for appointment to the above

services but at the same time there might be those who would be fulfilling this criteria and would get a chance to appear in the said examination.

Therefore, one has to accept this situation even though it is not in his/her favour but at the same time, it may be beneficial to others. The

aforementioned Rule which prescribes a cutoff date regarding the minimum age criteria, thus, cannot besaidtobe ultravires in view of the law laid

down by the Apex Court in Shankar K. Mandal and Ashok Kumar Sonkar's case (supra).

It is not that the respondent State has fixed the criteria at the time when applications were invited. The criteria was fixed earlier also vide SRO

161 of 1995, which becomes apparent from the perusal of the judgment passed by a Division Bench of this Court in LPA(SW) No. 129/98 titled

J&K Public Service Commission v. Anil Sharma and others, decided on 7th of Aug'02. After taking note of the various judgments passed by the

Apex Court on the subject of fixing of a cutoff date in the matter of selection to a public post, the Division Bench in the aforesaid case observed as

under:

Such a cut off date fixed by the Government under the relevant rules can neither be said to be arbitrary nor capricious. Such a date is not so wide

off the mark as to be construed unreasonable or grossly arbitrary. The time gap between advertisement and the cut off date is less than a year. It is,

however, strenuously urged by Mr. Sunil Sethi that lower age is always taken with reference to the year of Examination, as against the cut off date

of the year in which notification inviting applications is issued by the Commission under a given advertisement. According to him, this can

undoubtedly be a possible cut off date. But there is no basis, in our view, for urging that this is the only reasonable cut off date. Even such a date is

liable to question in given circumstances. A person who may fall on the wrong side of the cut off date may contend that the cut off date is unfair,

since the advertisement has been issued earlier; or in the alternative that the cut off date could be fixed later at the time 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 why the Apex Court in

Parameshwaran Match Works (AIR 1974 SC 2349) (supra) has said that the cut off date, is valid unless it is so capricious or whimsical or it is

wholly unreasonable. To say that the only cut off date can be with reference to the year of examination or the last date of receiving applications,

appears to be without any basis. In our view, cut off date, which is fixed in the present case with reference to the beginning of the calendar year in

which notification inviting applications is issued cannot be considered as capricious or unreasonable. Apart from that, when cut off date is fixed by

Rules "". applicable specifically to the. relevant services, General rule, if any, will not be applicable. The source of this Rule, SRO 161 of 1995

prescribing the maximum and minimum age on cut off date i.e.. 1st of January of the year in which notification inviting applications, is issued by the

Commission also emanates from the powers conferred on the State under Section 124 of the Constitution of Jammu and Kashmir. Determining the

maximum or minimum age for a post, for the sake of repetition, is in the discretion of the Rule making Authorities such empowered, as the case

may be. Reliance placed by Mr. Sunil Sethi on Rule 37 of General Rules, in the facts and circumstances of the case, to support his contention and

augment the debate, is misconceived and cannot sustain.

At pages 9 and 10 of the judgment in the aforesaid case, the Division Bench further observed as under:

..............Merely because the respondent writ petitioner would qualify for submission of form and process of selection, if the cut off date with

reference to the age is shifted from 1st January of the year of notification inviting applications to the 1st January of the year ofExamination is no

reason for dubbing the earlier date as arbitrary and irrational, is the view expressed by the Apex Court in State of Bihar and others v. Ramjee

Prasad and others, AIR 1990 SC 1300.

The fixing of a cut off date by mere issuance of a fresh SRO i.e. SRO 387, which prescribes the minimum and maximum age limit, which

criteria was already in existence in terms of SRO 161 of which reference has been made in the aforesaid judgment and which has been upheld by

the Division Bench of this court in the above referred case, thus, cannot be termed as arbitrary or malafide act on the part of the respondent State.

As indicated above, it is not that the respondents have fixed the minimum age criteria at the last moment before inviting applications just to

debar the petitioners from appearing in the preliminary examination. This criteria was well known to all the aspirants, and therefore, fixing of such a

criteria by prescribing a particular minimum age limit which relates to a particular date of the year in which the notification is issued, cannot be said

to be bad in the eyes of law keeping in view the legal position noticed above.

So far as the plea of the petitioners that while fixing the criteria, the principles of natural justice have not been kept in view is concerned, it

would be apt to mention that applying of such a principle would depend upon the facts of a particular case as has been held by the Apex Court in

the case reported as Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529. What was observed in para 25 of the judgment by the

Apex Court is reproduced below:""25. The uselss formality theory, it must be noted, is an exception. Apart from the class of cases of 'admitted or

indisputable facts leading only to one conclusion' referred to above, there has been considerable debate on the application of that theory in other

cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to, above.

This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry,

J. and Straughton, L.J. etc. in various cases and also views expressed by leading writyers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark

etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some

others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think

it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.

In this regard, it would further be apt to notice the observations made by the Apex Court in the case of Karnataka SRTC v. S.G. Kotturappa,

(2005) 3 SCC 409. What was said in para 24 of the judgment, is being reproduced below:

The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in

each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural

justice are furthermore not required to be compiled it when it will lead to an empty formality. What is needed for the employer in a case of this

nature is to apply the objective criteria for arriving at the subjective satisfaction.............

In the present case, it cannot be said that the minimum age criteria fixed by respondents is not an objective criteria. The same has been fixed by

the authority concerned on the basis of its subjective satisfaction. In case, the plea of petitioners that the ""respondent State has not fixed the criteria

keeping in view the interest of students at large is accepted, then, it be seen that those candidates who might be fulfilling the maximum age limit of

35 years in case of general candidates and 40 years in case reserved category candidates as on 1st of Jan'08, which is the cut off date, would be

debarred from appearing in the process of selection being overaged. The candidates i.e. the petitioners herein who were not 21 years of age on the

cut off date fixed by the respondents, may get some more chances of appearing in the Combined Competitive Examination which would be held in

near future, but such like candidates who will become overage after the present selection process, as indicated above, may not get such a chance

again. Therefore, while fixing a criteria regarding a cut off date in such like matters, a balance has to be maintained, which in the present case has

been done by the respondents by fixing 1st of January of the year in which the notification is issued as the cutoff date for the purposes of minimum

and maximum age limit. The respondent State on its subjective satisfaction, thus, has adopted a parameter by fixing the cut off date as the 1st of

January of the year in which the notification is issued and in doing so, there may be some candidates who fall on the right side of the cut off date

and some others who may fall on the wrong side of the said cut off date and may not be the beneficiaries but adoption of such a process cannot be

termed as unreasonable or violative of principles of natural justice.

The further plea of the petitioners, as noticed above, is that the Union Public Service Commission while inviting applications for Civil Service

Examination, 2009, have issued a notification on 6fh of Dec'08, prescribing the minimum age limit as 21 years as on 1st of Aug'09. It is stated that

the respondentState taking the above aspect of the matter should also change the minimum age criteria.

A perusal of the notification (Annexure B with OWP No. 310/09), issued by the Union Public Service Commission shows that, 'under the age

criteria, the minimum age has been fixed as 21 years and maximum of 30 years as on 1st Aug'09 i.e. a cut off date has been fixed by the said

Commission which has been taken as eight months after the receipt of application forms. It may not be out of place to mention that even under the

said cut off date so fixed by the Union Public Service Commission, there may be some candidates who are not able to fulfil this criteria but position

has to be accepted even though it may not be beneficial to some of the candidates. Even otherwise, it is not that the Union Public Service

Commission has not fixed any criteria so far as minimum age limit is concerned. It is for the respondent State herein to see as to what should be the

cut off date so far as minimum and maximum age limit is concerned and this court in writ jurisdiction cannot direct the respondents to fix a

particular cut off date in this regard nor any direction can be issued to struck down the cut off date so fixed in the Rules unless the act on the part

of respondents in framing such a rule appears to be totally unreasonable which in the present case is not. The intention of the authority concerned in

framing the rule in question regarding fixing the cut off date as the 1st of January of the year in which notification is issued, on the other hand,

beyond any doubt, appears to be fair and reasonable.

Regarding the plea of the petitioners that the respondent State may be directed to relax the minimum age criteria, it be seen that under the rules,

the State Government has no power to relax the minimum age bar whereas the power in this regard can be exercised by the respondent State so

far as maximum age limit is concerned mat too in exceptional cases. Therefore, no such direction can be issued to the State to relax the minimum

age criteria when theRules governing the field particularly lay down a specific provision regarding the eligibility of minimum and maximum age limit

for the purposes of selection to the Combined Competitive Examination.

So far as malafide attributed to the Commission is concerned, it be noticed that the Commission of its own has no authority either to frame a

particular rule or to initiate a selection process unless and until the vacancies are referred to it by the General Administration Department of the

State and an urgency is shown in this regard, which in the present case appears to be so. A perusal of the record produced by the Commission

shows that on 18th of Dec'2008, a letter was addressed by the Deputy Secretary to Government, General Administration Department, to the

Secretary of the Commission whereby 398 vacancies were referred for making selection to three different services of Junior Scale of J&K

Administrative Service, J&K Police (G) Service and J&K Accounts (G) Service. The matter was treated as most urgent which is apparent from

the perusal of the aforementioned letter itself. The Commission thereafter without wasting any time issued the notification impugned on 30th of

Dec'08, for inviting the applications and making the selection process for appointment to the posts under the above services in accordance with

SRO 387 dt. 1st of Dec'08, which lays down the minimum and maximum age limit criteria along with other eligibility conditions. Therefore, there

does not seem to be any malafide on the part of Commission in issuing the notification in the month of Dec'08, itself, after it was requested to

initiate the process of selection by the General Administration Department of the State.

For the reasons mentioned above, these petitions are found to be without merit and are dismissed. The Commission shall not be under any

obligation to accept the candidature of those candidates whose application forms stand accepted in view of the interim actions passed by this court

in some of the writ petitions. The said application forms shall also be deemed to have been rejected.