Ram Milan Thakur vs State Of Bihar And Ors

In both the cases, identical issue has been raised hence, both these writ petitions are being disposed of by common judgment. For convenience, the

facts of C.W.J.C. No.5619 of 2020 are being taken into consideration and in need this Court would also take the facts from C.W.J.C. No. 5638 of

2020.

In C.W.J.C. No. 5619 of 2020 the petitioner has made a prayer for quashing the part of Clause-3 of Advertisement no.04 of 2020 issued by the

Bihar Public Service Commission, Patna, whereby and whereunder maximum age for general category candidates has been fixed as 35 years as on

01.08.2018 and for reserved category candidate maximum age has been fixed as 40 years as on 01.08.2018. Further prayer has been made for

issuance of writ of mandamus directing the respondents to fix the cut-off date of maximum age as 01.08.2014 in place of 01.08.2018 for appearing in

the Judicial Service Examination in pursuance of Advertisement No. 04 of 2020.

In C.W.J.C. No. 5638 of 2020, the petitioners have made a prayer for grant atleast one opportunity to those aspirants who attained the prescribed

maximum age in between 01.08.2013 to 01.08.2018 and declare them eligible to apply against Advertisement no. 04 of 2020.

So, the prayer made in both the cases are identical and similar.

The petitioner of C.W.J.C. No. 5619 of 2020 is aged about 44 years whereas, the petitioner nos.1, 2 and 3 of C.W.J.C. No. 5638 of 2020 are aged

about 42, 42 and 37 years respectively. Admittedly, all the petitioners are over age and as such, they approached this Court with a prayer to relax the

cut-off date of maximum age from 01.08.2018 to 01.08.2014 for appearing in the Judicial Service Examination.

The facts emerges from the records of the case are that the Bihar Public Service Commission vide advertisement No.04 of 2020 announced for

conducting 31st Bihar Judicial Services Competitive Examination for appointment of Civil Judges (Lower Division). Total posts have been shown as

As per the advertisement, the cut-off date of minimum age has been fixed as 22 years as on 01.08.2019 and cut-off date of maximum age for

general category candidates has been fixed as 35 years as on 01.08.2018 and for reserved category candidates cut-off date of maximum age has been

fixed as 40 years as on 01.08.2018.

As per the petitioner of C.W.J.C. No. 5619 of 2020, namely, Ram Milan Thakur, he has filed a representation before the Deputy Chief Minister,

Government of Bihar, Patna, and raised objection that in 28th Bihar Judicial Service Competitive Examination, 2012 the maximum age for general

category candidates for appearing in the said examination was fixed as 35 years as on 01.08.2011 and 40 years for reserved category candidates. It

has also been stated that in 29th Bihar Judicial Service Competitive Examination, 2016, the maximum age for general category candidates for

appearing in the said examination was fixed as 35 years as on 01.08.2012 and for reserved category candidates maximum age was fixed as 40 years

as on 01.08.2012. Similarly, in 30th Bihar Judicial Service Competitive Examination, 2018 the maximum age for general category candidates was fixed

as 35 years as on 01.08.2013 and for reserved category candidates maximum age was fixed as 40 years as on 01.08.2013. So, in 31st Bihar Judicial

Service Competitive Examination, 2020 the maximum age for general category candidates for appearing in the examination should be fixed as 35

years having cut-off date on 01.08.2014 and 40 years for reserved category candidates. In support of his contention, he has attached the photocopies

of the advertisements.

It has further been submitted that he belongs to reserved category candidate and his date of birth is 09.06.1976 and on 01.08.2014 he completed the

age of 38 years 2 months and 22 days, which is below the maximum age fixed for the reserved category candidates whereas, on 01.08.2018 his age

will be 42 years 2 months and 22 days and becomes ineligible. It has further been submitted that the petitioner filed a representation before the

Controller of Examination, Bihar Public Service Commission, Patna, and the Chairman, Bihar Public Service Commission, Patna, on 13.03.2020 as

well as before the Principal Secretary, General Administration Department, Government of Bihar, on 20.03.2020 for redressal of his grievance.

The Government of Bihar has filed its affidavit, from where it appears that the Deputy Secretary of General Administration Department,

Government of Bihar vide letter dated 9398 dated 15.07.2019 (Annexure-B to the counter affidavit) sent a letter to the High Court and given the

details in what manner the cut-off date has been fixed with respect to minimum and maximum age in connection with different years of examination

and has shown the example of 29th Judicial Service Examination, from where it appears that for 2011-12, 2012-13 and 2013-14 only one cut-off date

was fixed i.e. 01.08.2012; in 30th Judicial Service Examination for the year 2014-15, 2015-16 and 2016-17, only one cut-off date was fixed i.e.

01.08.2013 and in the present 31st Judicial Service Examination for the year 2018-19, the cut-off date has been fixed as 01.08.2018, so it should be

reconsidered and be fixed the cut-off date as 01.08.2017 instead of 01.08.2018.

From the counter affidavit of the High Court it appears that the said letter was considered by the Selection and Appointment Committee of the High

Court and whereafter it has been affirmed by the Standing Committee of the High Court. It will be relevant to quote paragraph nos. 7 to 17 of the

counter affidavit filed by the High Court, which reads as under:-

“7. That by letter No.3907 dated 13.1.2019, the Court requested the General Administration Department, Government of Bihar, Patna, to initiate

and conduct recruitment process against 182 vacancies (clear and anticipated) as calculated in the cadre of Civil Judge (Lower Division) upto the year

2018-19 as on 31.3.2019. With reference to the said letter No. 3907 dated 13.01.2019 of the Court, the General Administration Department, Bihar,

vide letter No.1983 dated 13.2.2019 requested certain information from the Court including year wise vacancies and fixing cut off date for

determination of minimum and maximum age.

That in view of the above information sought for from the Court by the General Administration Department, Bihar the office placed a detailed note

before the Hon’ble Selection and Appointment Committee also stating therein that all 182 vacancies (clear and anticipated) are of the year 2018-

19 because there were no clear vacancies for the year 2017-18. Thereupon, the Hon’ble Selection & Appointment Committee in its meeting held

on 28.02.2019 vide Agenda Item No.2 considered the above letter dated 12.2.2019 of the General Administration Department, Bihar and was pleased

to resolve as follows:- “The Committee has considered the letter of the General Administration Department and the note of the office and finds

that there are 182 vacancies (clear + anticipated) for the year 2018-19.

The Committee resolves to fix 01.08.2018 as cut-off date for calculation of maximum as well as minimum age in terms of Rule 6(a) of the Bihar Civil

Service (Judicial Branch) (Recruitment) Rules, 1955 and it further resolves to name the recruitment process for filling up of 182 vacancies as 31st

Bihar Judicial Service Competitive Examinationâ€​.

Thereafter, the Hon’ble standing Committee in its meeting held on 12.3.2019 considered the above minutes dated 28.2.2019 of the Hon’ble

Selection and Appointment Committee and was pleased to resolve as follows:- “The proposal of the Committee dated 28.2.2019 is approvedâ€​.

That accordingly the above decisions of the Court that (a) 01.08.2018 will be the cut off date for calculation of maximum as well as minimum age in

terms of Rule 6(a) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 (b) 182 vacancies (clear and anticipated) calculated in the

cadre of Civil Judge (Junior Division) is for the year 2018-19 and (c) the name of the recruitment process to fill up these vacancies would be the 31st

Bihar Judicial Services Competitive Examination was communicated to the General Administration Department, Bihar vide letter no. 25850 dated

26.03.2019 of the Court. Subsequently, the Court, in continuation of its above two letters dated 13.1.2019 and 26.3.2019 vide letter No.43331 dated

15.5.2019 informed the General Administration Department, Bihar vacancies in the cadre of Civil Judge (Junior Division) for the year 2018-19 as on

31.3.2019 have been recalculated and on recalculation it was found that there were altogether 221 vacancies (clear and anticipated) in place of 182

vacancies. It is submitted that these 221 vacancies for the year 2018-19 relate to financial year 2018-19 which is evident from the above notes put in

the concerned file of the Court leading to issuance of above letter Nos. 25850 dated 26.3.2019 and 43331 dated 15.5.2019 of the Court to the said

Department.

That thereafter the General Administration Department, Bihar, vide letter No. 9398 dated 15.07.2019, referring to the cut off dates for

determination of maximum and minimum ages as fixed for the 29th and 30th Bihar Judicial Services Competitive Examination, requested to consider

fixing 1.8.2017 instead of 1.8.2018 as the cut off date for determination of maximum age for the 31st Bihar Judicial Service Competitive Examination

with reference to the third proviso to Rule 4 of the 1955 Rules.

That the above said letter dated 15.7.2019 with relevant facts and details were placed before the Hon’ble Selection and Appointment

Committee by the office for its consideration and decisions. The Hon’ble Selection and Appointment Committee in its meeting held on 06.08.2019

vide Agenda item no.2 was pleased to resolve as follows:- “The Committee has considered the letter dated 15.07.2019 of the Deputy Secretary,

General Administration Department, Government of Bihar and is of the view that cut-off dates are fixed under Rule 6(a) of the Bihar Civil Services

(Judicial Branch) (Recruitment) Rules, 1955 which provides that the age of the candidates should be under 35 years and over 22 years on the 1st day

of August in the preceding year in which the examination is held. Further, there could not be any applicability of proviso to Rule 4 of the said Rules in

the present circumstances as examinations are being conducted regularly and no special case for relaxation in the age limit is made out.

Hence, the committee resolves to reject the request of the Govt. made in the aforesaid letterâ€​.

The Hon’ble Standing Committee in its meeting held on 13.08.2019 vide Agenda No.15 considered the minutes dated 6.8.2019 of the Hon’ble

Selection and Appointment Committee in the matter relating to letter dated 15.7.2019 of the General Administration Department, Bihar for fixing

1.8.2017 as the cut off date for calculation of maximum age for 31st Bihar Judicial Service Competitive Examination and was pleased to resolve as

follows:- “The Committee resolves to accept the minutes of the Selection and Appointment Committee in so far as the fixation of cut-off date is

concerned as the same is in accordance with Rule 6(a) of the Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1955â€​.

Accordingly, the above decision of the Court not to fix 1.8.2017 instead of 1.8.2018 as the cut off date for determining the maximum age was

communicated to the General Administration Department, Bihar, vide letter no. 67528 dated 17.8.2019 of the Court.

That under letter No.2572 dated 8.1.2020 the Commission forwarded to the General Administration Department, Bihar, a draft of the

Advertisement of the 31st Bihar Judicial Service Competitive Examination for its approval. In this letter the Commission referred to the above letter

No. 67528 dated 17.8.2019 of the Court fixing 1.8.2018 as the cut-off date for determination the maximum age and stated that it was not clear as to

what would be the cut off date for fixing the minimum age and thus referring to Rule 6(a) of the 1955 Rules and to the fact that the said 31st Bihar

Judicial Services Competitive Examination would probably be held in the year 2020 the Commission further stated that it has mentioned these cut off

dates as 1.8.2018 and 1.8.2019 as the cut off dates for determining the maximum and minimum age in the draft advertisement and requested for its

approval. The said letter dated 8.1.2020 and the draft advertisement of the Commission was sent to the Court under letter No.1317 dated 24.1.2020 by

the General Administration Department, Bihar requesting concurrence thereon. The said letter dated 24.1.2020 was followed by reminder letter

no.1520 dated 28.1.2020 of the said Department to the Court.

That the above two letters dated 24.1.2020 and 28.1.2020 of the General Administration Department, Bihar seeking clarification/ concurrence of

the Court in relation to the Draft Advertisement of the 31st Bihar Judicial Services Competitive Examination as proposed under the above letter dated

08.01.2020 of the Commission with relevant facts and figures were placed before the Hon’ble Selection and Appointment Committee for its

consideration. The Hon’ble Selection and Appointment Committee in its meeting held on 20.02.2020 vide Agenda Item no.4 was pleased to

resolve as follows:- “The Committee has considered letters dated 24.01.2020 and 28.1.2020 received from the Under Secretary, General

Administration Department, Govt. of Bihar as also letter dated 08.01.2020 of the Secretary, Bihar Public Service Commission as well as the notes of

the Registry. The committee, on consideration of the matter, resolves as under:-

For the present exam there shall be no reservation for Economically Weaker Sections as the matter is under consideration before the Full Court.

The cut-off date as 01.08.2019 for calculating minimum age, as proposed by the BPSC may be concurred as the examination is going to be held in

the year 2020.

The clauses regarding availing maximum number of attempts to be availed by the Unreserved category candidate as well as relaxation of minimum

qualifying marks in the written examination as was mentioned the advertisement of 30th Bihar Judicial Service Competitive Examination at the end of

para 4(ka) may also be incorporated in the advertisement of 31st Bihar Judicial Service Competitive Examination. The Committee resolves to refer the

matter to the Standing Committee for approval and concurrenceâ€​.

That accordingly the above matter was placed before the Hon’ble Standing Committee which in its meeting held on 25.2.2010 vide Agenda

Item no.1 was pleased to resolve as follows:-“Having considered the matter, the Committee resolves to approve the minutes dated 20.02.2020 of

the Hon’ble Selection and Appointment Committee against agenda item no.4 with modification that the clause related to the provision of

reservation for economically weaker section will be the part of the advertisement with proviso that it would be subject to the decision of the Full Court

as the matter is already pending before it. At the same time, in the draft advertisement, in 2nd line of paragraph 4 (ga) the words, “

, -16645, 03.12.2014 †would stand deletedâ€. That said decision of

the Court in terms of the aforesaid resolutions was accordingly communicated to the General Administration Department, Bihar vide letter No.14392

dated 29.02.2020 of the Court.

That thereafter the Commission issued Advertisement No.04/2020 dated 9.3.2020 inviting application from eligible candidates for direct

recruitment against 221 posts of Civil Judge (Junior Division) and as per clause 3 thereof the candidate should not be over 22 years of age as on

1.8.2019 and should be under 35 years of age as on 1.8.2018 and for candidate belonging to reserved category including women and orthopedically

disabled category it should be under 40 years on 1.8.2018.â€​

When this Court has put a question that as per Rule-6(a) of the Recruitment Rule, 1955 there would be single cut-off date of minimum and

maximum age as the Rule prescribes that cut-off date would be fixed preceding the year of examination and the examination is going to be conducted

in the year 2020, so the cut-off date should not be as 01.08.2018, in turn, learned counsel for the High Court replied that the recruitment process has

started in the year 2019 but, materialized in the year 2020, in such view of the matter, the cut-off date for maximum age has been fixed as 01.08.2018,

which also appears from the letter written by the Registrar General of this Court dated 26.03.2019 addressed to the Principal Secretary, General

Administration Department, Government of Bihar, Patna. So, in this manner, already one year's relaxation has been granted.

It will be relevant to quote Rule-6(a) of the Bihar Judicial Services Recruitment Rules, 1955, which reads as under:-

“6. A candidate may be of either sex and must -

(a) Be his age should be under 35 years and over 22 years on the 1st day of August in the preceding year in which the examination is held.

Provided that a candidate belonging to a reserved category including women and orthopedically disabled category must be under 40 years and over 22

years of age on the said date.

Provided further that, no candidate who does not belong to reserved category including women and orthopedically disabled category, shall be allowed

to take more than five chances at the examination.â€​

From perusal of Rule 6(a) of the aforesaid Rule, 1955 it appears that the cut-off date for minimum and maximum age will be 1st day of August of

the preceding year in which the examination is held. Further, from the narration of facts brought by the High Court through counter affidavit and also

the letter of the Registrar General of this Court addressed to the Government show that one year relaxation has been granted for those in the context

of maximum age limit.

This issue is no longer res integra as in C.W.J.C. No.8018 of 2020 (Alok Anand vs. The State of Bihar and Ors.) and C.W.J.C. No. 6188 of 2020

(Prateek Srivastava vs. The State of Bihar and Ors.) challenge was made to Rule-6(a) of the Bihar Judicial Services Recruitment Rules, 1955

regarding fixation of minimum age limit and this Court vide judgment and order dated 06.11.2020 has refused to interfere with the matter.

As this Court has already considered the issue of fixation of cut-off date for minimum age limit with respect to present examination and from the

averments made in the counter affidavit of the High Court and also the relevant documents shows that at different levels the High Court has

considered the matter regarding fixation of maximum age limit and ultimately came to the concision that cut-off date has rightly been fixed.

Furthermore, the fixation of the condition of service and entry in the service is within the domain of the Legislature or the Executives or the employer.

In the present case, suggestion of the Government was considered at different level of this Court and after full deliberation, this Court has arrived to a

conclusion that the request of the Government for fixing the cut-off date as 01.08.2017 cannot be acceded. Even presuming that the request of the

Government would have been accepted then also the petitioners of both the cases would not have been benefited.

Further, in the case of Dr. Ami Lal Bhat vs. State of Rajasthan and Ors. reported in (1997) 6 SCC 61,4 the issue with regard to cut-off date in

upper age limit came for consideration before the Hon’ble Supreme Court. In that case, it has been argued that the cut-off date fixed by different

Recruitment Rules is arbitrary and it should be declared to be bad in law. The said contention was rejected by holding that the cut-off date for

determining the maximum or minimum age prescribed for the post is not per se arbitrary. Basically, the fixing of a cut-off date for determining the

maximum or minimum age is in the discretion of the Rule-making Authority or the employer as the case may be. It has also been held that the cut-off

date cannot be fixed with a 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. Hardship of

candidate will not make statutory provision illegal, capricious and arbitrary.

It will be relevant to quote paragraph nos. 4, 5, 6 and 7 of the said judgment, which read as under:-

“4. 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 or minimum age

prescribed for a post is 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 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 off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this court in

Union of India v. Parameswaran Match Works1 and has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B.

Sharat Chandra2 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 or maximum 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 apply and for the recruiting agency to

scrutinise 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 date.

Therefore, fixing an independent cut off date, far from being arbitrary, makes for certainty in determining the maximum age.

In the case of Union of India v. Sudhir Kumar Jaiswal3 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 Parmeshwaran Match Works case1 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.

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 dependent 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 fall 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 why this Court has said in the case of Parameshwaran Match Works1 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.â€​

For the reasons discussed hereinabove, we find that the relief sought by the petitioners do not deserve any consideration from this Court.

Accordingly, both these writ petitions are dismissed.