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PETITIONER: STATE OF BIHAR AND ORS.

       Vs.

RESPONDENT: RAMJEE PRASAD AND ORS.

DATE OF JUDGMENT11/04/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 AIR 1300            1990 SCR  (2) 468  1990 SCC  (3) 368        JT 1990 (2)   225  1990 SCALE  (1)742

ACT:     Constitution  of India. 1950  Article 14 Last  date  for receipt  of applications--fixation of b), the Government  in the advertisement-Whether can be struck down.

HEADNOTE:     The  State of Bihar published an advertisement  inviting applications  for appointments to the junior teaching  posts in  medical colleges in the State of Bihar. For the post  of Assistant  Professor. only such officers who had  worked  as Resident  or Registrar in Medical Hospitals  recognised  for imparting  M.B.B.S. studies by the Medical Council of  India and having three years experience of such post were  consid- ered eligible. The last date for receipt of applications was fixed as 31st January 1988. Pursuant to the said  advertise- ment.  applications from eligible candidates  were  received and a select list or panel was prepared for appointments  to the respective posts. The respondents and some other  inter- venors  who  were working then in the  Medical  colleges  as junior teachers challenged the State action in fixing the  3 1st  of  January  1988 as the cut-off date  for  receipt  of applications  for the advertised posts. as they had by  then not completed three years which was prescribed as the requi- site  experience. It was contended by them that the  cut-off date  was arbitrarily fixed and was therefore  violative  of Article 14 of the Constitution. The High Court took the view that the State Government in fixing the 31st January 1988 as the  cut-off date. had deviated from its usual  practice  of fixing  the  cut-off date as 30th of June  of  the  relevant year.  Hence  this appeal by the State of Bihar  by  special leave.     It  is contended by the State that the decision  of  the High  Court was based on an erroneous premise that the  cut- off date for eligibility purposes was ’always’ fixed as 30th of June of the relevant year in the past. Allowing the appeal, this Court.     HELD:  The  past practice was to fix the last  date  for receipt  of  applications a month or one and a  half  months after  the date of actual publication of the  advertisement. Following the past practice the State 469

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Government  fixed the last date for receipt of  applications as  31st January 1988. These who had completed the  required experience  of  three years by that  date  were.  therefore. eligible to apply for the posts in question. [474G-H]     The choice of date cannot be dubbed as arbitrary even if no particular reason is forth-coming for the same unless  it is  shown  to  be capricious or whimsical  or  wide-off  the reasonable mark. The choice of ’the date for advertising the post  had to depend on several factors, e.g.. the number  of vacancies in different disciplines. the need to fill up  the posts. the availability of candidates etc., [475C-D]     Merely  because  the respondents and some  others  would qualify  for  appointment if the last date  for  receipt  of applications is shifted from 31st January 1988 to 30th  June 1988. is no reason for dubbing the earlier date as arbitrary or irrational. [475D]     The High Court was clearly in error in striking down the Government’s  action of fixing the last date for receipt  of application as 31st January 1988 as arbitrary. [475E]     Municipal  Board,  Pratabgarh & Anr. v.  Mahendra  Singh Chawla  & Ors.,  [1982] 3 S.C.C. 331; Union of India &  Anr. v. M/s. Parameswaran Match Works & Ors., [1975] 1 S.C.C. 305 and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitika- ran  Abhiyan  Samiti, Varanasi v. State of Uttar  Pradesh  & Ors., [1987] 2 S.C.C. 453, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1837  of 1990.     From the Judgment and Order dated 17.1.1989 of the Patna High Court in C.W.J.C. No. 4276 of 1988, A. Sharan for the Appellants. Pankaj Kalra and Pramod Swarup for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Delay condoned. Special leave granted. This  appeal  arises out of the decision of the  Patna  High Court 470 whereby  it struck down the selection made for  appointments in  the  junior teaching posts in medical  colleges  in  the State  and  directed a fresh selection list to  be  prepared after shifting the last date for receipt of applications  to 30th  June,  1988.  The facts giving rise  to  this  appeal, briefly stated, are as under.     The  State of Bihar published an advertisement  inviting applications  for appointment to the posts of (i)  Assistant Professor (clinical subject); (ii) Registrar; (iii)  Assist- ant  Clinical  Pathologist; (iv) Anesthetist;  (v)  Resident Medical Officer and (vi) Demonstrator (Tutor) in  non-clini- cal  subject  for  different Medical  Colleges  and  Medical College  Hospitals  in the State of Bihar. For the  post  of Assistant  Professor  only such officers who had  worked  as Resident  or  Registrar in Medical Hospital  recognised  for imparting  M.B.B.S. studies by the Medical Council of  India and having three years experience of such post were  consid- ered eligible. The last date for receipt of the  application was fixed as 31st January, 1988. Pursuant to the said adver- tisement applications were received from eligible candidates and  the select list or panel was prepared for  appointments to the respective posts. The respondents and some  interven- ors  who held appointments as junior teachers in one or  the other Medical Colleges in the State questioned the  validity of the State’s action of inviting applications for  prepara-

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tion  of  a list for appointments to  the  advertised  posts mainly  on  the  ground that the last date  for  receipt  of applications fixed as 31st January, 1988 (hereinafter called ’the  cut-off  date’) deprived them of  the  opportunity  to compete for the posts as they did not complete the requisite experience  criterion  of three years by that time.  It  was contended  that this cut-off date was arbitrarily fixed  and was, therefore, violative of Article 14 of the Constitution. The  High Court took the view that the State Government  had deviated from its usual practice of fixing the cut-off  date as 30th of June of the relevant year. This is clear from the following observation made by the High Court: "   .....   advertisement in the past including one  in  the year 1983 (Annexure-1) always fixed 31st June as the date                 " ...... (Emphasis supplied) The  use of the word ’always’ indicates that the High  Court was  under the impression that in the past the cut-off  date was  always fixed as 31st June (it should be 30th June)  for the  preparation of the panel for appointments to the  posts in question. Elsewhere also in the judgment there are obser- vations which disclose that the High Court laboured 471 under  the belief that the cut-off date was always fixed  as 30th of June of the relevant year. This becomes obvious from the following criticism also: "If  the State is determined to achieve such a goal  and  is ready to make its activity predictable it is a welcome  sign but  such desired predictability can equally be achieved  by adhering  to the schedule of the past and  maintaining  30th June  of the years as the last date for the application.  If they had not followed any rule in the past and they  propose to  follow a rule in this regard in future, they can  do  so without  causing  any violation to any legal  right  of  any incumbent  by  at least showing adherence to  the  reckoning date which until now had been the last date of the month  of June of the year." (Emphasis supplied) On this line of reasoning the High Court came to the conclu- sion’that  the  State Govermnent had  acted  arbitrarily  in fixing  the  last date fox receipt of applications  as  31st January,  1988  under the advertisement  published  on  29th December,  1987. The High Court while upholding the  conten- tion  based  on Article 14 further observed "we  would  have ignored the arbitrariness in taking 31st January of the year as  the reckoning date had we not taken notice  of  recalci- trance  of the, respondents in taking no step in  the  years intervening  the selection in the year 1983 and the  present selection".  The High Court, therefore, felt satisfied  that there  was no rationale in departing from the past  practice and  selecting  31st January, 1988 as the last date.  It  is felt that in all fairness 30th of June of the year would  be ’the .preferable date’ for reckoning the eligibility of  the candidates. The State Government was, therefore, directed to shift  the last date for receipt of the applications from  3 1st  January 1988 to 30th June, 1988 and to prepare a  fresh panel  thereafter  and  make appointments to  the  posts  in question therefrom.     The  State of Bihar feeling aggrieved by this order  has approached this Court by special leave. The learned  counsel for the State submitted that the decision of the High  Court was based on an erroneous premise that the cut-off date  for eligibility  purposes was ’always’ fixed as 30th of June  of the  relevant  year  in the past. In order  to  dispel  this assumption made by the High Court without examining the past

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advertisements the State Government has placed before us the advertisements  issued  from 1974 to 1980 which  shows  that different  cut-off  dates were fixed under  these  different advertisements  and at no time in the past between 1974  and 1980 was 30th of June fixed as the 472 relevant  date. It is true that the High Court did not  have the benefit of the earlier advertisements but it is  equally true  that there was no material on the record of  the  High Court  for concluding that in the past the cut-off date  was ’always’  fixed as 30th of June of the relevant  year.  From the copies of the advertisements from 1974 to 1980 it  tran- spires that generally the cut-off date was fixed between one to  one and a half months after the date of issuance of  the advertisement. In the year 1983 for the first time the  cut- off date was fixed as 30th June, 1983. On some occasions  in the  past  the cut-off date was extended, depending  on  the facts  and circumstances obtaining at the relevant point  of time.  It, therefore, becomes obvious from this  documentary evidence  that the factual premise on which the  High  Court has based its judgment is clearly erroneous. The High  Court was  in error in thinking that in the past the cut-off  date was  always fixed as 30th of June of the relevant  year.  In fact except for a solitary occasion in 1983 when the cut-off date  was fixed as 30th June, 1983, at no other time in  the past was that date fixed as the last date for receipt of the applications. No advertisements were admittedly issued after 1983  and before the advertisement in question. The  present advertisement  was published on 29th December, 1987 and  the last  date for receipt of applications was fixed  thereunder as 3 ist January, 1988 leaving a time gap of a little over a month.  As pointed out earlier, on a perusal of  the  adver- tisements  issued from 1974 to 1980 it becomes obvious  that normally  the cut-off date was fixed one or one and  a  half months  after the date of advertisement. It was,  therefore, not the uniform practice of the State Government to fix  the cut-off date for eligibility purposes as 30th of June of the relevant  year as was assumed by the High Court. Once it  is found  that  the  High Court has based its  decision  on  an erroneous assumption of fact, the decision cannot be allowed to stand.     It  was, however, argued by the learned counsel for  the respondents that the State Government should not be  permit- ted  to  introduce new facts in the form  of  advertisements issued from 1974 to 1980. We do not think that such a  tech- nical approach would be justified for the simple reason that the  assumption of fact made by the High Court is not  borne out  from  record. No material was placed  before  the  High Court  to  justify the conclusion that 30th of June  of  the relevant year was ’always’ fixed as the cut-off date in  the past.  The  High Court’s assumption of fact  is,  therefore, based on no evidence at all. We have, therefore, thought  it fit  to  permit the State Government to  place  material  on record  to  justify its contention that the High  Court  had committed  a  grave error in assuming that in the  past  the cut-off  date was always fixed as 30th of June of the  rele- vant year. 473     It was next contended that this Court should not  inter- fere  in exercise of its extra-ordinary  Jurisdiction  under Article 136 of the Constitution. In support of this  conten- tion  reliance was placed on the observations of this  Court in  Municipal  Board. Pratabgarh & Anr.  v.  Mahendra  Singh Chawla  &  Ors., [1982] 3 SCC 331 wherein this  Court  while correcting  an  error of law refused to interfere  with  the

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decision  of the High Court directing reinstatement  of  the workman  on the finding that the termination order  was  in- valid. That was, however, a case where the Court came to the conclusion  that  the employee was a capable  hand  and  his services  were  actually needed by the  appellant  Municipal Board. It was in those special circumstances that this Court while  correcting  the error refused to interfere  with  the order  of reinstatement. The decision, therefore, turned  on the special facts of that case.     The appellant invited our attention to two decisions  of this Court, namely, Union of India & Anr. v. M/s.  Pararnes- waran Match Works & Ors., [1975]1 SCC 305 and Uttar  Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi  v. State of U.P. & Ors.  [1987] 2 SCC 453 in  sup- port  of its contention that the High Court was in error  in holding  that the State had acted arbitrarily in fixing  the cut-off  date. In the first mentioned case  by  Notification No. 162 dated 21st July, 1967, which superseded the  earlier notifications,  provision  was made that if  a  manufacturer gave a declaration that the total clearance from the factory will not exceed 75 million matches during a financial  year, he  would  be entitled to a concessional rate  of  duty.This Notification  was amended by Notification No.205  dated  4th September, 1967, clause (b) whereof confined the concession, inter  alia  to factories whose total clearance  of  matches during  the financial year 1967-68, as per declaration  made by  the  manufacturer before 4th September,  1967,  was  not estimated  to exceed 75 million matches. Thus,  the  conces- sional  rate of duty could be availed of only by  those  who made  the  declaration before 4th September, 1967.  The  re- spondent  was not a manufacturer before 4th September,  1967 as  he had sought for a licence on 5th September,  1967  and was therefore, in no position to made the declaration before 4th  September, 1967. The respondent, therefore,  challenged the cut-off date of 4th September, 1967 as arbitrary.  Deal- ing with the contention, this Court observed as under: "In the matter of granting concession or exemption from tax, the  Government has a wide latitude of discretion.  1t  need not give exemption or concession to everyone in order 474 that  it may grant the same to some. As we said, the  object of granting the concessional rate of duty was to protect the smaller  units in the industry from the competition  by  the larger ones and that object would have been frustrated,  if, by  adopting the device of fragmentation, the  larger  units could become the ultimate beneficiaries of the bounty." While pointing out that a classification could be rounded on a particular date and yet be reasonable, this Court observed that  the  choice of a date as a  basis  for  classification cannot  always be dubbed as arbitrary even if no  particular reason  is  forthcoming for the choice  unless  the  circum- stances  show it to be capricious or whimsical. When  it  is necessary  for the legislature or the authorities to  fix  a line  or a date and there is no mathematical or logical  way of  fixing it precisely, the decision of the legislature  or authority  must be accepted unless it is shown to be  capri- cious  or whimsical or wide off the reasonable mark. In  the second  mentioned case this Court, while upholding the  con- stitutional  validity  of  section 31-B  of  the  U.P.Higher Educational  Service  Commission  Act,  1980,  answered  two contentions, namely, (1) adoption of the cut-off date in the said section as 3rd January, 1984 for the purposes of  regu- larisation  of the services of ad-hoc teachers appointed  by the management of the affiliated colleges was arbitrary  and irrational  and violative of Article 14 inasmuch  as  equals

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were treated as unequals, and (ii) the Legislature could not arbitrarily adopt 3rd January, 1984 as the cut-off date  for regularisation  of  the services of ad-hoc  teachers  merely because  that was the date on which the 1983 order  expired. Agreeing  with the High Court that the fixation of the  date for  the  purposes of regularisation was  not  arbitrary  or irrational, this Court observed that the object of section 3 I-B  was to regularise the services of ad-hoc  teachers  ap- pointed  under the 1983 order till 3rd January,  1984.Ad-hoc teachers who had been appointed prior to that date had legal sanction  and therefore they constituted a  distinct  class. This  Court, therefore, felt that the legislature could  not have adopted any other basis for purposes of  regularisation and refused to interfere with the High Court’s order.     In  the  present case as pointed out  earlier  the  past practice  was to fix the last date for receipt  of  applica- tions  a  month or one and a half months after the  date  of actual publication of the advertisement. Following the  past practice  the State Government fixed the last date  for  re- ceipt  of  applications  as 31st  January  1988.  Those  who had   ....  the required experience of three years  by  that date  were,  therefore, eligible to apply for the  posts  in question.  The respondents and some 475 of  the  intervenors who were not  completing  the  required experience by that date, therefore, challenged the  fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as 31st January, 1988 the State Government had only followed the past practice and if the High Court’s attention had been invited to this fact it would perhaps have refused to inter- fere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the  rele- vant  year  as the last date for  receipt  of  applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As  pointed out  by  this Court the choice of date cannot be  dubbed  as arbitrary  even if no particular reason is  forthcoming  for the same unless it is shown to be capricious or whimsical or wide  off  the reasonable mark. The choice of the  date  for advertising  the  posts had to depend  on  several  factors, e.g., the number of vacancies in different disciplines,  the need  to fill up the posts, the availability of  candidates, etc.  It is not the case of any one that experienced  candi- dates  were not available in sufficient numbers on the  cut- off  date.  Merely because the respondents and  some  others would  qualify for appointment if the last date for  receipt of  applications is shifted from 31st January, 1988 to  30th June,  1988  is no reason for dubbing the  earlier  date  as arbitrary  or irrational. We are, therefore, of the  opinion that  the High Court was clearly in error in  striking  down the Government’s action of fixing the last date for  receipt of applications as 31st January, 1988 as arbitrary.     It  was lastly contended that the State  Government  had given an undertaking to the High Court that ’no  appointment shall  be made from any previous panel and that, as  decided by this Court, if the panel, which is likely to be  prepared pursuant  to  the  advertisement in  question,  is  allowed, appointments  shall be made from the same panel or  if  that panel  is  not  allowed and a new panel is  required  to  be prepared,  as directed by this Court, appointments shall  be made from the same panel’. This undertaking, in our opinion, cannot  preclude the State from challenging the decision  of the High Court.     In the result, this appeal succeeds. The impugned  deci-

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sion  of the High Court is set aside and the  Writ  Petition which  has  given rise to this appeal will  stand  dismissed with no order as to costs throughout. Y.   Lal                                              Appeal allowed. 476