J & K Public Service Commission vs Anil Sharma and Others

S.K. Gupta, Judge.

Heard Mr. D.C. Raina, learned advocate for the Appellant, as well as M/s Sunil Sethi and J.P. Singh, learned advocates for the respondents, in

extenso.

This appeal arises out of a decision of learned Single Judge dated: 25th March, 1998 in OWP No. 733/1995. By the aforesaid judgment and

order, the learned Single Judge allowed the writ petition and permitted the petitioner to take part in the examination at his own risk and

responsibilities and to be well within his right to take part in the process of further selection, and directed the authorities to make arrangements to

interview the writ petitioner, in case the interview process has come to an end.

Pursuant to the notification SRO161 dated: 17071995 issued by the Stale Government in exercise of its Constitutional powers under Section

124 of the Constitution of Jammu and Kashmir notifying the rules for the purpose of making selection of eligible candidates as direct recruits on the

basis of a combined competitive Examination, AppellantPublic Service Commission published an advertisement vide Notification No.

PSC/Ex95/59 dated: 14091995 inviting applications from the eligible candidates for appearing in the Competitive Examination. The notification

prescribed the condition of age as per SRO161 of 1995 reflected therein as age of a candidate as on 01011995 should be minimum 21 years and

maximum 35 years. The writ petitioner also submitted his application. His application, however, was not entertained for not qualifying the age

eligibility as transcribed in the advertisement notification.

Aggrieved by the action of the AppellantPublic Service Commission in rejecting the candidature of the writ petitioner being under aged in terms

of the SRO161 read with Notification dated:14091995, he approached this Court by a writ of certiorari for quashing condition No. 5 (ii)of

SRO161 dated: 17071995 fixing minimum age of a candidate as 21 years as on 1st January', 1995. An interim direction was given on 18th

October, 1995 by the Court directing the application of the writ petitioner to be entertained and permitted Win to take part in the Examination.

The result of the petitioner, however, was declared under the Court directions dated: llth July, 1996 on a Miscellaneous Petition filed by the writ

petitioner. The petitioner was further allowed to participate in the Main Examination on a Court direction dated: 31st December, 1997 and his

result declared. The petitioner after having qualified in the Main Examination awaited for the interview, when by impugned judgment, the petition

was allowed and the petitioner was permitted to participate in the process of further selection and directed to be interviewed by the

respondentauthorities, which become the subject matter of challenge before this Letters Patent Bench.

The sole controversy that centres around in a narrow compass in this case is the minimum age prescribed in SRO161 of 1995 and reflected in

Notification dated: 14091995. Mr. D.C. Raina, learned advocate appearing for the appellant, vehemently urged that since State Government has

issued SRO161 of 1995 prescribing minimum and maximum age eligibility for the Combined Competitive Examination, Notification published in

inviting applications was issued strictly according to the rules and regulations and conducted the Examinations accordingly. Respondentwrit

petitioner was underaged as per Notification and was found not competent, which entailed rejection of his candidature for appearing in preliminary

test. His further contention is that the writ Court, without declaring the rules either ultravires or bad in law, allowed the writ petition, notwithstanding

the relevant rules and regulations governing the minimum and maximum age limits for the purpose of participating in the Combined Competitive

Examination. Having known the legal parameters within which we have to function, it is to be seen whether fixation of 1st January, 1995 as cut off

date for determining the eligibility of the applicants qua their age can be held to be arbitrary. The condition of age eligibility is prescribed in Rule 5

(ii) of SRO161 of 1995. For the sake of convenience Rule 5 (ii) is reproduced hereunder:

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

(i)......

(ii) Must have attained the age of 21 years and not attained the age 28 years as on 1st January of the year in which notification inviting applications

is issued by the Commission.

A plenary reading of the aforesaid Rule make it explicit that age eligibility provided for an applicant to participate in Combined Competitive

Examination is that, he must be of the age of 21 years on 1st January of the year in which notification inviting applications is issued by the

Commission. This notification is dated: 14091995. The minimum age requirement for participation in the Examination as on 01011995. as

condition of eligibility, was 21 years clearly indicated by the notification pursuant to SRO161 of 1995 issued by the Government in exercise of the

powers under Section 124 of the Constitution of Jammu and Kashmir. As per the notification, the last date for admission of the forms was 31st

October, 1995 and the Examination was to be held thereafter. The Examination was held in the year 1996.

Mr. Sethi, learned counsel appearing for respondent1, submitted that the petitioner cannot be made ineligible on account of all the conditions

specifying the minimum and maximum age in Rule 5 (ii) of the Annexure to SRO161 dated: 17071995. His further contention is that, Service Rules

should be taken into consideration for determining the age eligibility.

The cut off date in this case has been fixed by the State of Jammu and Kashmir under its Rules related to various services with reference to 1st

January of the year in which notification inviting applications is issued by the Commission (1st January, 1995 in this case). The similar controversy

came up for consideration before the Apex Court in Dr. Ami Lal Bhat Vs. State of Rajasthan and others, AIR 1997 SC 2964 and it was held as

under:

This contention in our view is not sustainable. In the first place the fixing of a cut off date for determining the maximum or minimum age prescribed

for a post is not pre 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 Rulemaking Authority or the employer as the case may be. One must accept that such a cut off date cannot be fixed with any

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 of date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in

Union of India Vs. M/s Parameshwaran Match Works, AIR 1974 SC 2349 and has been reiterated in subsequent cases....

......The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply

and for the recruiting agency to scrutinize the applications."" This Court, therefore, held that in order to avoid uncertainty 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 take an uncertain time, it is desirable

that such a cut off date should be with reference to a fixed dale. Therefore, fixing an independent cut off date, far from being arbitrary, makes for

certainty in determining the maximum age.

Further, the Apex Court held:

In the case of Union of India Vs. Sudhir Kumar Jaiswal (1994)4 SCC212: (1994 AIR SCW 2866) 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, there 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 would be reluctant to strike down such a cut off date.

Such a cut off date fixed by the Government under the relevant Rules can 'neither be said lo be arbitrary nor capricious. Such a date is not so

wide off the mark as to be construed unreasonable or grossly arbitrary. The lime 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 dated 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 dale. Bui there is no basis, in our view, for urging that this is the only reasonable cut of date. Even such a

date is liable lo 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 dale could be fixed later at the time of selection or

appointment. Such an argument is always open, irrespective of the cut of 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 dale 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 lo the year of Examination or the last date of receiving applications,

appears to be without any basis. In our view, cut of date, which is fixed in the present case with reference lo 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, SRO161 of 1995

prescribing the maximum and minimum age on cut of 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 Rulemaking 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. For facility of reference, Note 7 to Rule 37 is quoted as under:

Note. 7. In the case of initial appointment to Government Service made on the recommendations of the Recruitment Boards, Public Service

Commission, or any Selection Committee, the limitations of minimum and maximum age as contained in Article 37, shall be observed with

reference to first day of January in which the advertisement notice for the post(s) is issued. This shall also apply to pending cases if any.

A plenary reading of the notification, placed on record, inviting applications for preliminary Combined Competitive Examination based on

SRO161 of 1995, makes it apparent that the minimum age of 21 years should be there as on 1st January of the year in which notification inviting

applications is issued. The Examination in this case was to commence in March 1996. The petitioner's date of birth is 9th March, 1974. He

attained age of 21 years on 19th March, 1995. He was clearly ineligible qua his age on cut off date, as prescribed in the notification. The Rules for

the Combined Competitive Examination have been framed by the Government in issuing an SRO 161 of 1995 on 17th July, 1995. The minimum

age provided for a candidate to participate in the selection process (for submitting an application) is21 years on 1st of January of the year in which

notification inviting applications is issued under Rule5 (ii). This Rule in conjunction with Rule 37 of the Jammu and Kashmir Civil Services

Regulations makes it clearly manifest that the age prescribedis with reference to the 1st day of January of the year in which the advertisement notice

is issued. In SRO161, the Rules framed are for holding of Combined Competitive Examination for specified services therein indicating the minimum

and maximum age on a cut off date, which manifestly exclude these services from the ambit of Jammu and Kashmir Civil Service (Classification,

Control and Appeal) Rules, 1956. The intent of the Rulemaking Authority or the Appointing Authority is indisputably gatherable form the Rules

made for the specified services qua their minimum or maximum age prescribed on a cut off date, viz., 1st January of the year in which notification

inviting applications is issued by the Commission.

The fixation of 1st January of the concerned year when notification inviting applications for Combined Competitive Examination as date with

reference to the applicability of the applicant quo age is to be determined by the authority depends on several factors Merely because the

respondentwrit 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 of Examination is no reason for dubbing the earlier date as

arbitrary and irrational, is the view expressed by the Apex Court in Slate of Bihar and others Vs. Ramjee Prasad and others, AIR 1990 SC 1300.

The writ petitioner, therefore, cannot be held eligible for Combined Competitive Examination being underage as per the eligibility criteria specified

in the notification inviting applications for the purpose of such Examination based on the Rules framed by the Rulemaking Authority in issuing

SRO161 dated: 17071995 in exercise of its constitutional authority flowing from Section 124 of the Constitution of Jammu and Kashmir. The view

expressed by the learned Single Judge. under the facts and circumstances of the case, in our view, is not legally sustainable.

In the result, we allow the appeal, set aside the impugned decision of the learned Single Judge, and the writ petition, which has given rise to this

appeal, will stand dismissed with no order as to costs throughout.