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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: SUDHIR KUMAR JAISWAL

DATE OF JUDGMENT04/05/1994

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) KULDIP SINGH (J)

CITATION:  1994 AIR 2750            1994 SCC  (4) 212  JT 1994 (3)   547        1994 SCALE  (2)808

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by HANSARIA,  J.- 1st of August of the year concerned has  been fixed as the date with reference to which the eligibility of persons  desirous of sitting in competitive examination  for recruitment  to  the  Indian  Administrative  Service/Indian Foreign  Service etc., qua their age for which both  minimum and  maximum is normally fixed, is being  determined.   This cut-off  date had been fixed when the Union  Public  Service Commission had been conducting only one written  examination which used to be normally after 1st August.  The Commission, however,  felt  the  necessity  of  holding  a   preliminary examination  which  normally takes place before 1st  day  of August.    Even  so,  the  eligibility  of  the   applicant, regarding  satisfaction of the age requirement continued  to be ascertained with reference to his age as on 1st August of the year concerned. 214 2.   The aforesaid cut-off date came to be challenged before various  Central Administrative Tribunals, one of  which  is Central Administrative Tribunal at Allahabad.  The  Tribunal in  its earlier decisions rendered, inter alia, in  OA  Nos. 778  of  1991  and 881 of 1991 on  19-9-1991  did  not  find anything arbitrary in taking 1st August as the cut-off  date despite  holding of the preliminary examination before  that date.   Indeed,  in  two OAS which had  been  filed  by  the respondent himself before the aforesaid Tribunal which  were registered as OA Nos. 168 of 1990 and 1161 of 1992 and  came to be decided on 7-5-1993, the Tribunal had not accepted the contention of the respondent that fixation of 1st August was arbitrary.  A different view has, however, been taken in the present  impugned judgment by the same Tribunal  by  holding that  1st of August as the cut-off date is  arbitrary.   The appellants, namely, the Union of India and the Union  Public Service  Commission  have  assailed  the  legality  of  this decision.

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3.   That there can be no arbitrariness in fixation of even. a  cut-off  date is not disputed before us  by  the  learned Additional  Solicitor  General  who  has  appeared  for  the appellant.   This  stand has been correctly  taken,  because after  Article  14  has spread its wings  in  the  field  of administrative  law following what was principally  held  in Maneka   Gandhi  case’  no  stand  can  be  taken   by   any administrative  authority  that  it  can  act   arbitrarily. Indeed,  even before the decision in Maneka Gandhi’ law  was that no administrative authority has absolute discretion  to decide  a matter within its competence the way  it  chooses. This has been the accepted position and this Court had cited with approval what had been stated in this regard in  United States  v.  Martin Wunderlich2 the relevant  part  of  which reads as below:               "Law  has reached its finest moments  when  it               has  freed  men from unlimited  discretion  of               some  ruler, some civil or military  official,               some bureaucrat. ... Absolute discretion is  a               ruthless  master.  It is more  destructive  of               freedom than any of man’s other inventions." 4.   Insofar  as fixation of cut-off date is concerned,  the same can be regarded as arbitrary by a court if the same  be one about which it can be said that it has been "picked  out from a hat", as was found to be by this Court in D.R. Nim v. Union  of India3 because of which fixation of  19-5-1991  as the date for the purpose concerned was held to be invalid. 5.   As  to when choice of a cut-off date can be  interfered was opined by Holmes, J. in Louisville Gas & Electric Co. v. Clell Coleman4 by stating that if the fixation be "very wide of any reasonable mark", the same can be regarded arbitrary. What was observed by Holmes, J. was cited with approval by a Bench of this Court in Union of India v. Parameswaran 1 Maneka Gandhi v.Union of India, (1978)1   SCC248:AIR  1978 SC 597 2    342 US 98:96 LEd113 (1951) 3    AIR 1967 SC 1301: (1967) 2 SCR 325 4    277 US 32: 72 L Ed 770 (1927) 215 Match  WorkS5 (in paragraph 10) by also stating that  choice of  a date cannot always be dubbed as arbitrary even  if  no particular reason is forthcoming for the choice unless it is shown  to be capricious or whimsical in  the  circumstances. It was further pointed out where a point or line has to  be, there  is  no  mathematical  or logical  way  of  fixing  it precisely,  and so, the decision of the legislature  or  its delegate  must be accepted unless it can be said that it  is very wide of any reasonable mark. 6.   The aforesaid decision was cited with approval in D. G. Gouse and Co. v.    State  of Kerala6; so also in  State  of Bihar  v.  Ramjee  Prasad to which decision  we  shall  have occasion to refer later also. 7.   In this context, it would also be useful to state  that when  a court is called upon to decide such a  matter,  mere errors are not subject to correction in exercise of power of judicial review; it is only its palpable arbitrary  exercise which  can be declared to be void, as stated  in  Metropolis Theater  Co.  v. City of Chicago8 in which  Justice  McKenna observed as follows:               "It  may  seem unjust and oppressive,  yet  be               free from judicial interference.  The problems               of  government  are  practical  ones  and  may               justify,   if  they  do  not  require,   rough               accommodations,  illogical,  it  may  be,  and               unscientific.  But even such criticism  should

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             not be hastily expressed.  What is best is not               always  discernible; the wisdom of any  choice               may be disputed or condemned.  Mere errors  of               government  are  not subject to  our  judicial               review.   It  is only its  palpably  arbitrary               exercises which can be declared void......" The  aforesaid was noted by this Court in Sushma  Sharma  v. State  Of  Rajasthan9 in which case  also  reasonability  of fixation of a date for a particular purpose had come up  for examination. 8.   Having known the legal parameters within which we  have to  function, let it be seen whether fixation of 1st  August as   cut-off  date  for  determining  the   eligibility   of applicants qua their age can be held to be arbitrary despite preliminary  examination being conducted before  that  date. As to why the cut-off date has not been changed despite  the decision to hold preliminary examination, has been explained in  paragraph 3 of the special leave petition.  The sum  and substance of the explanation is that preliminary examination is  only  a  screening  test  and  marks  obtained  in  this examination do not count for determining the order of merit, for   which   purpose  the  marks  obtained  in   the   main examination,  which  is still being held after  1st  August, alone are material.  In view of this, it cannot be held that continuation  of  treating 1st August as the  cut-off  date, despite   the   Union  Public  Service   Commission   having introduced  the method of preliminary examination  which  is held 5    (1975) 1 SCC 305: AIR 1974 SC 2349 6    (1980) 2 SCC 410: AIR 1980 SC 271 7    (1990) 3 SCC 368 8    57 L Ed 730 (1912): 228 US 61 9   1985 Supp SCC 45: 1985 SCC (L&S) 565: AIR 1985 SC 1367 216 before  1st  August, can be said to be "very  wide  off  any reasonable mark" or so capricious or whimsical as to  permit judicial interference. 9.   Let it now be seen as to why the Bench in the  impugned judgment despite the earlier decisions referred earlier, has accepted  the  case  of the respondent.  A  perusal  of  the judgment shows that the Bench relied on an office memorandum issued by the Government of India on 4-9-1979 to come to its decision.   It is enough to observe that what is  stated  in this  memorandum, which is apparently executive  in  nature, cannot  override  the  statutory  provisions  finding  place either   in   Regulation  4(ii)  of  IAS   (Appointment   by Competitive  Examination) Regulations, 1955 or Rule 6(a)  of Civil  Services Examination Rules, 1992.  According  to  us, this is so elementary a point that an adjudicatory body like the  CAT  could not have, in any case was  not  expected  to have,  made  the mistake of relying on the same as  it  runs counter to the aforesaid statutory provisions.  This is  not all.   The aforesaid office memorandum came to be  explained or modified by another office memorandum of 14-7-1988, which has made it clear that insofar as civil service examinations are  concerned,  it is the later date which  is  crucial  in between two dates, namely, 1st January and 1st August.   So, no reliance could have been, in any case, placed on what had been stated in this regard in the office memorandum of  4-9- 1979. 10.  Shri  Jain, learned counsel for the  respondent,  being conscious  of the weakness of the legal stand taken  by  the Tribunal, urged that equity should come to the  respondents’ assistance because of the view taken by this Court in  Mohan Kumar  Singhania  case10  to which  the  Tribunal  has  also

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referred in its judgment.  We have applied our mind to  this aspect.   We  are  not persuaded to agree  with  Shri  Jain, because what happened in Singhania case10 was different.  We have taken this view also because the impugned judgment  has left  room to think it was inspired by some oblique  motive. Though in putting this on record, we have not felt happy but we  have  felt called upon to do so  because  the  Allahabad Bench  itself  of  the  CAT  had  rejected  the  self   same contention of the respondent himself in the two OAs referred earlier.   In  view  of  this, the  present  Bench  was  not justified in refusing to make a reference to a larger  Bench to  decide the point to which effect a prayer had been  made by  the  appellants.  The Bench ought to have  referred  the matter  to a larger Bench also because of two  decisions  of that Bench itself taking different view, more so, as it  was deciding  a point relating to conduct of examination  by  an important  body  like Union Public Service  Commission,  and that  also for examinations conducted for selecting IAS  and IFS  Officers.  The reference to larger Bench was  eminently called  because the earlier decisions of the  Tribunal  were based on the judgments of this Court in Ramjee Prasad  case7 in which the reasonableness of cut-off date examined related to filling up posts, as in the case at hand. 10  Mohan Kumar Singhania v. Union Of India, 1992  Supp  (1) SCC 594 217 11.  For  the aforesaid reasons, equity does not demand  any favour  to be shown to the respondent.  The result  is  that appeal  is allowed with costs by setting aside the  impugned order  of  the Tribunal.  Cost assessed as Rs  10,000.   The respondent would not be treated or deemed to have passed the examination in question and whatever benefit of the same was given  to him pursuant to Tribunal’s directions shall  stand cancelled. 219