NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5836-5837  OF 2009 (Arising out of SLP(C) Nos. 20151-20152 of 2008)

Public  Service Commision through Secretary, Madhya Pradesh Public Service Commission etc.     ……….Appellants

Versus

Arvind Singh Chauhan and Ors. Etc.      ……..Respondents

JUDGMENT

H.L. Dattu,J.  

      Leave granted.  

2) These appeals are  directed against the judgment and order  

passed by the High Court of Judicature of M.P., Jabalpur  

Bench at Gwalior in W.A. No.259 of 2007 dated 18.09.2007.

3) The facts in brief are:-  The appellant – Public Service  

Commission  had  issued  two  advertisements  inviting  

applications from eligible and qualified persons for State  

Service  Examination  2001.  In  the  notification  issued  on  

01.11.2001 it was clearly mentioned that the  age limit for  

appearing in the Preliminary Examination shall be 30 years  

relaxable by three years as on 1.1.2002 and subsequently on  

9.10.2003, another advertisement was issued where the age  

limit has been prescribed as 30 years relaxable by five  

years as on 1.1.2004.

4) The respondents (Arvind Singh Chauhan and others) appeared

in the preliminary examination conducted by the appellant.  

They  were  declared  passed  in  the  said  preliminary  

examination and were allotted roll numbers for appearing in  

the final examination which was to be conducted in May-June  

2006. However, the respondents were not permitted by the  

appellant-Commission  from  appearing  in  the  Viva-voce  

test/final examination on the ground that they were over  

aged.

5) Aggrieved by  the aforesaid  action of  the appellant,  the  

respondents filed a writ petition before the Hon’ble High  

Court of Judicature of M.P Bench at Gwalior, inter alia  

requesting  the  Court  to  direct  the  Public  Service  

Commission  not  to  exclude  the  respondents  and  other  

similarly  situated  candidates  from  participating  in  the  

viva-voce  test/final  examination  and  for  other  ancillary  

reliefs.  

6) The  main  contention  of  the  writ  petitioners/respondents  

before  the  Learned  Single  Judge  was  that  as  per  the  

advertisement issued in 2001 they were eligible to appear  

in examination as they were below 33 years as on 1.1.2002.  

The  petitioners  had   further  contended  that  another  

advertisement was issued in the year 2003 and as per Clause  

10 of that advertisement, those who were eligible to appear  

in  the  examination  of  2001,  shall  also  be  eligible  to  

appear in  the later  examination. Hence  according to  the  

petitioners, their results were being withheld wrongly by  

the Public Service Commission.

7) The case made out by the Public Service Commission was that  

the age of the candidates should be 33 as on 1.1.2002, and

35 as on 1.1.2004, to be eligible to participate in the  

examination  and  according  to  them,  none  of  the  writ  

petitioners fulfilled  the age criteria and therefore the  

final results of the petitioners have not been declared.  

8) The Learned Single Judge after perusal of the records has  

come to the conclusion that no details nor any document was  

filed by the writ petitioners to prove that in pursuance to  

the earlier advertisement issued in the year 2001 by Public  

Service Commission, they had submitted their applications.  

The Court while holding that the writ petitioners are not  

entitled for any relief, has relied on the observation made  

by this Court in the case of Malik Mazhar Sultan v. U.P  

Public Service Commission [(2006) 9 SCC 507]. In that case  

this Court has observed, that recruitment to service can  

only be made in accordance with the Rules and the error, if  

any, in  the advertisement  cannot override  the Rules  and  

create a right in favour of a candidate if otherwise not  

eligible according to the Rules. The Learned Judge has also  

relied upon Clause 25 of the advertisement issued in the  

year  2003,  going  by  which,  the  Commission  is  fully  

empowered  to  cancel  selection  of  the  candidates  at  any  

stage  without  giving  any  prior  information  to  the  

candidates. It was also observed, that,  considering the  

volume  of  applications  it  is  practically  impossible  to  

scrutinize  each  and  every  line  of  the  form  and  merely  

because  appellants  were  permitted  to  appear  in  the  

preliminary examination, they cannot claim to permit them  

to appear in viva voce test/final examination. The Learned  

Judge is also of the view that the case referred to by the

counsel for the writ petitioners (Sanjay Singh v. UP Public  

Service  Commission)  cannot  assist  the  petitioners.   The  

Learned Judge has concluded that the respondents were not  

entitled  to  any  relief  as  far  as  age  relaxation  was  

concerned. Accordingly, he dismissed the writ petition.

9) Aggrieved by the judgment of the Learned Single Judge the  

respondent(s) had preferred an appeal before the Division  

Bench  of  the  High  Court.  The  Division  Bench  relying  on  

certain clauses  in the  advertisement issued  in the  year  

2003, has concluded that the candidates who had initially  

appeared  in  the  examination  of  2001,  were  permitted  to  

appear  in  the  examination  of  2003.  According  to  the  

Division Bench, the petitioners were not allowed to appear  

in the final examination only on the ground of being over  

aged. The Division Bench also has observed that the learned  

counsel for the Commission has no objection to consider the  

case  of  the  three  petitioners  as  per  the  advertisement  

issued in 2003.  Accordingly, the Division Bench allowed  

the writ  appeals and  further directed  the Commission  to  

permit the writ petitioners to appear in the interview and  

consider their cases on merit alone.

10)The  appellant-Commission  had  filed  a  review  application  

before the High Court requesting the Court to review its  

earlier order.  In the review application, it was brought  

to the notice of the Court that the petitioners had not  

submitted  the  application  before  the  Commission  till  

29.12.2007, by which time the results of the examination  

were  already  declared.  Therefore  the  respondents  were  

disentitled from appearing in the final examination.  The

petitioner had also challenged the finding of the Division  

Bench with regard to the so called concession made by their  

learned counsel.   

11) On consideration of the review application, the High Court  

has brought to the fore a Circular dated 22.3.2002, issued  

by the Department of General Administration of the State  

Government in which it was mentioned that the relaxation in  

age extended for a further period of two years and if any  

candidate is below the age of 35 years till March 2003, he  

will be entitled to file an application for appointment in  

the government service. The contention of the petitioners  

was that in March 2003, the petitioners were below the age  

of  35  years.  The  contention  of  the  counsel  for  the  

petitioner was that March 2003 could not be considered to  

be  a  cut-off  date  and  the  circular  simply  means  that  

whoever  is  below  35  years  of  age  as  on  March  2003  is  

eligible to apply.  However, the court observed that the  

effect of the circular is that 31st March 2003 has to be  

considered as the cut-off date. Accordingly, has rejected  

the review petition.   

12)We have heard learned counsel for the parties to the lis.  

We have given our anxious consideration to the legal issues  

raised at the time of hearing these civil appeals.  In our  

view, the  issues that  would arise  for our  consideration  

are:  

(i)   Whether  the  High  Court  failed  to  appreciate  that  no  

concession or consent was given on behalf of the petitioner and  

that there was dispute on almost every aspect of the case?  

(ii)  Whether the High Court was justified in failing to  

appreciate the matter in the light of Clause 25 of the

advertisement which makes it clear that if there is any  

error in the application submitted by the candidates, the  

Commission is fully entitled to cancel the selection of  

the  candidates  at  any  stage  without  giving  any  prior  

intimation to such candidates?  

13)Clause 25 of the advertisement issued in the year 2003 reads as  

under:-

      “The  applicant  should  fill  up  form  very  carefully  after  reading  proper  instruction  given  in  the advertisement. If any information has been given  incomplete, even this is full responsibility of the  applicant and his application form can be cancelled at  any stage on the ground of error and incomplete. The  candidate shall be cancelled at any stage after giving  wrong caste certificate or filled up wrong caste in  computerized application form and the selection board  will take necessary action.”   

14)Clause 14 of the advertisement issued in the year 2001 states-  

“Candidate  should  ascertain  before  filling  the  form  that they have completed all qualifications and age  limit  as  per  the  advertisement  and  assure  that  all  entries of the application forms have been filled up  correctly.  This  is  self  responsibility  of  the  candidate that they have completed all qualifications  and  conditions  as  prescribed  in  the  advertisement.  Candidate  should  himself  examine  his  qualification  before  filling  up  the  form  and  fulfill  all  qualifications  and  conditions  before  sending  the  application. It does not mean that appearing in the  examination or calling for interview, that he has been  found qualified.”

15)According to  the clauses in the advertisement, the fact that  

the respondents have passed the preliminary examination does  

not  mean  that  their  application/candidature  is  valid.  The  

Commission is fully authorized to cancel the candidature of  

the candidates at any stage without prior intimation. The  

respondents  also  placed  reliance  on  Clause  10  of  the  

advertisement issued in the year 2003, where according to  

their contention, candidates eligible for appearing in the  

2001 examinations are also eligible to apply for the 2003

examinations.  However  the  relevant  provision  in  the  

advertisement states-  

“Those candidates who had submitted their application  for 2001 Madhya Pradesh State Service, only one time  age relaxation has been given by the department as per  letter  No.  C-3/5/2003/1  dated  14.8.2003  i.e  all  candidates  who  have  appeared  in  2001  State  Service  Examination, they will be entitled to appear in this  examination.”

16)The wordings clearly specify that the benefit is available  

to only those who have “appeared” for the 2001 examination  

and not to those who were “entitled to apply” for the 2001  

examination. Also as observed by the Learned Single Judge of  

the Madhya Pradesh High Court, there has been no details nor  

any  document  filed  by  the  petitioners  to  prove  that  the  

petitioners,  in  pursuance  to  the  earlier  advertisement  

issued  in  the  year  2001,  had  submitted  their  application  

forms.  

17)As far as the finding of the High Court is concerned, had  

the intention of the Commission been to consider March 31,  

2003 as a cut off date for eligibility, it would have been  

explicitly specified. The Division Bench has referred to the  

Circular dated 22.3.2002 issued by the Department of General  

Administration of the State Government. The relevant portion  

of the Circular reads:

“keeping in view the increasing problem of unemployed  youths in the state and keeping the interest of the  unemployed youths in mind, the government has again  considered  and  has  taken  a  decision  that  a  further  relaxation  of  2  years  more  needs  to  be  given.  Meanwhile thereby now from March 2000 to March 2003,  the maximum age limit for appointment in government  services will be 35 years.”  

18)Rule 5(C) of the State Examination Rules on which reliance

placed by the appellant states :

“A candidate must have attained the age of 21 years  and must not have attained the age of 30 years on 1st  

January next following the date of commencement of the  competitive examination.”

19)In view of the above discussion, in our considered view, the  

Division Bench of the High Court has erred in considering  

March 31, 2003 as a cut off date for eligibility, as there is  

no explicit mention of the same in the circular.   

20)In reply to certain averments in the counter affidavit filed  

by the respondents in response to the Special Leave Petition  

relating to age relaxation being the discretion of the state  

looking  at  the  problems  of  unemployment  and  regarding  the  

authority of the Commission to question the concession in age  

requirements,  it  has  been  made  clear  already  that  the  

Commission is not trying to question the age relaxation. The  

Commission is merely trying to enforce the age requirements  

prescribed by the State Government. On account of no record of  

any  concession  made  on  the  part  of  the  appellants  and  

considering all the circumstances of the case, it is clear  

that the respondents were over aged on the specified cut-off  

dates which makes their application liable for cancellation.  

21)In view of the above discussion, the appeals are allowed.  The  

impugned order is set aside.  In view of the peculiar facts  

and circumstances of the case, parties are directed to bear  

their own costs.  

  ………………………………J.

  TARUN CHATTERJEE]

  …………………………………J.

  [ H.L. DATTU ]

New Delhi, August 28, 2009