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PETITIONER: DR. AMI LAL BHAT

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT:       08/07/1997

BENCH: SUJATA V. MANOHAR, V. N. KHARE

ACT:

HEADNOTE:

JUDGMENT: (With  C.A.Nos.   3920-22/1992,   6129/1994,   3423-25/1995, C.A.Nos 4298  to 4301  of  1997  (Arising  out  of  SLP  (C) Nos.8730/95,  10659/95,   10251/95)  and  C.A.Nos.  6297/95, 93/95)                       J U D G M E N T MRS. SUJATA V. MANOHAR, J.      Leave granted.      In all  these appeals  the common question which arises for consideration is whether a Rule-making Authority can fix a cut  off date  with reference  to the  calender  year  for determining the  maximum age  of a  candidate who  is to  be considered for  direct recruitment  to a  service under  the State.   The petitions  and  appeals  before  us  deal  with different  Rules  of  service  in  the  State  to  Rajasthan pertaining to various services under the State.  Some of the Rules which  are under challenge before us are the Rajasthan Medical Services  (Collegiate Branch) Rules. 1962. Rajasthan Panchayat Samiti  and Zila parisad Service Rules   Rajasthan Class IV Services (Recruitment and other service conditions, Rules, 1963,  and Rajasthan  Educational Subordinate Service Rules. 1971.   All these Rules provide that the cut off date for deciding  the maximum age prescribed for a candidate for appointment will  be the  1st day  of January  following the date of application.  The affected candidates who are before us contend that such a cut off date which is uniformly fixed under all  the Service  Rules of  the State of Rajasthan, is arbitrary or unreasonable and must be struck down.      For the sake of convenience we are citing Rule 11(1) of the Rajasthan  Medical Services  (Collegiate Branch)  Rules, 1962 which  came up  for consideration  in a  writ  petition filed by  Dr. Rajeev Mathur before the Rajasthan High Court. The Rajasthan  High Court  held that  the portion of Rule 11 which prescribes  determination  of  the  maximum  age  with reference to  1st of  January following  the last date fixed for receipt  of applications, was arbitrary and unreasonable and struck it down.  The appeal before us from this judgment and order  is Civil appeal No. 2691/91 which is filed by the candidate who  was 2nd  in  the  order  of  merit  for  that particular selection. Rule 11(1) provides as follows:-      "11(1):-  A  candidate  for  direct

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    recruitment  to   a   junior   post      enumerated  in   Part  C   of   the      Schedule must not have attained the      age of 35 years on the first day of      January  following  the  last  date      fixed for receipt of applications.      Provided:      (1)  That   the  upper   age  limit      mentioned in  sub-rule (1)  and (2)      above, may be relaxed by 5 years in      exceptional cases  by Government in      consultation with the Commission."      The High  Court held  that the  words "the first day of January following" in Rule 11(1) must be deleted.      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  of minimum of minimum age prescribed for a post of 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 an 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 i n Union of India and another etc. V. M/s. Parameswaran Match Works etc. (AIR 1974 S.C. 2349)  and has been reiterated in subsequent cases.  In the cases  of A.P.  Public Service Commission, Hyderabad and another v.  . Sharat  Chandra and  Ors. (1990 2 SCC 669) 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 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  appl  and  for  the recruiting agency  to scrutinise  the applications".    This Court, therefore, held that in order to avoid uncertainly 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 taken an uncertain time, it is desirable that such a cut  off date  should be  with reference  to a fixed date. Therefore, fixing  in independent  cut off  date,  far  from

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being arbitrary,  makes for  certainty  in  determining  the maximum age.      In the  case of Union of India and Anr. v. Sudhir Kumar Jaiswal (1994 4 SCC 212) 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, here 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 wold 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  dependant 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 fail 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  by this  court has  said in  the  case  of Parameshwaran Match  Works(supra) 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

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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.      Learned advocate  for Dr. Rajeev Mathur in Civil Appeal NO. 2691/91 drew our attention to Rule 8(A) of the Rajasthan Medical (Collegiate  Branch) Rules, 1962. Under Rule 8(A) as originally framed  the appointing  authority was required to determine each  year the  number  of  vacancies  anticipated during the  following 12  months and  the number  of persons likely to  be recruited  by each  method.    This  rule  was amended at the material time under a notification dated 21st of  February,  1981.    Under  the  amended  rule  8(A)  the appointing authority shall determine on 1st April every year the  actual   number  of   vacancies  occurring  during  the financial year.  He contended that in the light of this rule all  vacancies  must  be  advertised  soon  after  they  are determined.   In the  case  in  question,  the  vacancy  had occurred in  September, 1987.   It  was, however, advertised only in January, 1988. Dr. Rajeev Mathur became over aged on 1st of January of the following year.  It was submitted that had the  vacancy been  advertised in  1987, the cut off date would have  been the  1st of  January 1988,  and Dr.  Rajeev Mathur would have been eligible.      In the  first place.  While construing  the validity of any given  Rule, we  cannot  decide  the  reasonableness  or unreasonableness of  that  rule  by  looking  at  borderline cases.   There is  no allegation  that the advertisement was deliberately postponed  to eliminate  Dr. Rajeev  Mathur  or that there was any deliberate delay in advertising the post. The delay between September and the following January cannot be considered  as unreasonable.  Rule 8(a) is merely for the purpose  of  determining  the  actual  number  of  vacancies occurring during  the financial  year.  It does not cast any obligation  on   the  appointing   authority  to   issue  an advertisement within  any specific  time for  recruitment to such a  vacancy. so  long as such an advertisement is issued within a  reasonable time,  and there is no mala fide delay, the action  of  the  appointing  authority  in  issuing  the advertisement  cannot   be  challenged  simply  because  the maximum age qualification is fixed with reference to a fixed date.      It   is    next   contended    on   behalf    of    the appellants/petitioners that  under all the concerned service rules there is a provision for age relaxation. In Rule 11(A) of the  Rajasthan Medical Services (Collegiate Branch) Rule, there is  a provision  for age  relaxation by 5 years by the Government in  consultation with  the commission.   There is also Rule  35 in  the said Rules which gaves a general power to relax  rules in exceptional cases where the Government is satisfied that  it is  necessary, inter  alia, to  relax any provision of  these Rules  with respect to age or experience of any  person and  this can be done with the concurrence of the Department  of Personnel  and Administrative Reforms and in  consultation   with   the   Rajasthan   Public   Service Commission.   It is  urged that  in the  case of  all  those persons who are adversely affected because the advertisement for recruitment  is issued  later than the occurrence of the vacancy.   Corresponding age  relaxation should  be given to all candidates.   In  other words, what is contended is that if on  the date  when the  vacancy occurred,  the candidates were within  the maximum  age prescribed by reference to the cut off date, the if the advertisement is delayed, their age should be  considered with  reference to the cut off date of

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1st January  following the  date of  occurrence of  vacancy. For example,  if the vacancy has occurred on 1st of April of a given  year, and the applicant would be within the maximum age on the 1st of January of the following year, then such a candidate  will  be  considered  as  eligible  even  if  the advertisement is  issued not  n April  of that  year but say February of the following year.  All the candidates will get age relaxation of one year.      In our  view this  kind of  an interpretation cannot be given to  a rule  for relaxation  of  age.    The  power  of relaxation is required to be exercised in public interest in a given  case; as  for example, if other suitable candidates are not  available for  the post, and the only candidate who is suitable  has  crossed  the  maximum  age  limit;  or  to mitigate hardship  in a  given case.   Such  a relaxation in special circumstances  of a given case is to be exercised by the  administration   after  referring   that  case  to  the Rajasthan Public  Service Commission.   There  cannot be any wholesale relaxation because the advertisement is delayed or because the  vacancy occurred  earlier especially when there is no  allegation of  any mala  fides in connection with any delay in  issuing an  advertisement.   This kind of power of wholesale relaxation  would make  for total  uncertainty  in determining the  maximum age  of a  candidate. It  might  be unfair to  be  large  number  of  candidates  who  might  be similarly situated,  but who  may not  apply, thinking  that they are  age barred.   We  fail to  see how  the  power  of relaxation can be exercised in the manner contended.      In the  premises we  do not see any reason to set aside the cut  off date fixed by the relevant rules. The judgments of the  Division Benches  of the  Rajasthan High Court in so far as they strike down 1st of January of the following year as the  cut off  date for  determining the  maximum age of a candidate for selection, require to beset aside.      Of the  various judgments  of the  Rajasthan High Court which are before us, it is necessary to note that a Division Bench of  the Rajasthan  High Court, differing from the view taken by the earlier Division Benches referred this question to a  Full Bench  of the Rajasthan High Court in the case of Surinder Singh  v.  The State of Rajasthan (1995 1 WLR 197). The Full  Bench of  the Rajasthan  High Court  overruled the earlier  judgments  of  the  two  Division  Benches  of  the Rajasthan High  Court and upheld the relevant service Rules. We agree with the reasoning and conclusion of the Full Bench of the Rajasthan High Court.      It was,  however,  pointed  out  to  us  by  the  third respondent (Dr.  Rajeev Mathur)  in C.A.  No. 2691/1991 that from the  decision of  the Division  Bench of  the Rajasthan High Court  in his  own case (Dr. Rajeev Mathur v. The State of Rajasthan)  the Rajasthan Public Service Commission filed a Special  leave petition  before this  Court being  Special Leave Petition  No. 6931  of  1991.  In  the  Special  Leave Petition, on  30th of  April, 1991  this  Court  passed  the following order :-           "We express  on  view  on  the      question of law raised but on facts      found we  decline to interfere. The      Special    Leave     Petition    is      dismissed."      It is  contended by  Dr. Mathur  that in  view  of  the dismissal  of  the  Special  Leave  Petition  filed  by  the Rajasthan Public  Service Commission,  the decision  of  the Division Bench  of the  Rajasthan High  Court in the case of Dr. Rajeev Mathur v. The State of Rajasthan has become final and cannot be set aside. Hence the appointment of Dr. Rajeev

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Mathur cannot  now be challenged. Dr. Rajeev Mathur was over age on the 1st of January of the year following the dated of application.  And   his  application  was  rejected  by  the Rajasthan Public  Service Commission  on the  ground that he was over  age. Immediately  he  preferred  a  writ  petition before the  Rajasthan High  Court. In  the writ  petition he averred that his case was being considered by the Government of Rajasthan  for age  relaxation. The  High Court, under an interim order,  directed the  Rajasthan Public Commission to consider his  application and  interview Dr.  Rajeev Mathur. Accordingly he  was interviewed.  His  application  for  age relaxation has been rejected by the Rajasthan Public Service Commission as well as by the State. But in view of his being interviewed, his  case was  considered and  he was selected. His position  was 1st  in the merit list. The High Court has directed that  he should be appointed. Does the dismissal of special leave petition filed by the Rajasthan Public Service Commission against this decision make this decision final as far as  Dr. Mathur  is concerned  ? In  order dismissing the special leave  petition this  Court has left the question of law open.  But what  is more relevant, the candidate who was second in  the merit list in that case also thereafter filed a special  leave petition  before this  Court from  the same judgment. He was granted leave and his appeal in numbered as C.A. 2691/1991.  This  appeal,  which  before  us,  directly challenges the appointment of Dr. Rajeev Mathur and the High Court judgment  under which  he is  appointed. If Dr. Rajeev Mathur is not eligible, then the appellant in this appeal is entitled to  be appointed  to that  post. Therefore,  at the instance of  the Rajasthan  Public Service  Commission  this Court  was  not  inclined  to  examine  the  merits  of  the individual case  before it;  though it  left the question of law open.  But when  the affected  candidate came  up before this Court  asking for  special leave  to appeal against the same judgment  of the  Division Bench, leave was granted and the appeal  has been  entertained.  It  is,  therefore,  not possible to  hold that the decision of the Division Bench of the Rajasthan High Court in the case of Dr. Rajeev Mathur v. The State of Rajasthan is final on the facts of the case and the appointment  of Dr.  Rajeev Mathur cannot be challenged. This appointment  is directly  under challenge  in C.A.  No. 2691/1991 which  require to  be considered  and  decided  on merit. Therefore,  we do  not see  any reason  to  make  any exception in the case of Dr. Rajeev Mathur.      Lastly,  in  the  appeal  arising  from  Special  Leave Petition No. 10659 of 1995, the respondent contended that he was in  fact not  over age on the cut off date which was, in that case 1st of January, 1992. The contention was raised on a wrong  reading of the date of birth. It is now accepted by the parties that the correct date of birth of the petitioner in that  case was  1st of January, 1959 and not 19th January 1959 as  originally urged.  The petitioner would, therefore, complete  33   years  of  age  which  was  the  maximum  age prescribed in the concerned advertisement, on 1st of January 1992,  the  cut  off  date.  His  case,  therefore,  is  not different from the case of other aggrieved candidates before us who are age barred on the cut off date.      In the  premises the appeals of the candidates who have challenged the  cut off  date under  the relevant  Rules are dismissed while  the appeal  filed by the State of Rajasthan are allowed. The validity of the concerned Rules relating to the cut  off date  being fixed with reference to 1st January of the  year following the application is upheld. There will be no order as to costs.

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