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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.

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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)

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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

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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.

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