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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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