Public Service Commission vs Arvind Singh Chauhan

Public Service Commision through Secretary, Madhya Pradesh Public Service Commission etc. ..........Appellants

Versus

Arvind Singh Chauhan and Ors. Etc. ........Respondents

JUDGMENT

H.L. Dattu,J.

Leave granted.

2) These appeals are directed against the judgment and order

passed by the High Court of Judicature of M.P., Jabalpur

Bench at Gwalior in W.A. No.259 of 2007 dated 18.09.2007.

3) The facts in brief are:- The appellant - Public Service

Commission had issued two advertisements inviting

applications from eligible and qualified persons for State

Service Examination 2001. In the notification issued on

01.11.2001 it was clearly mentioned that the age limit for

appearing in the Preliminary Examination shall be 30 years

relaxable by three years as on 1.1.2002 and subsequently on

9.10.2003, another advertisement was issued where the age

limit has been prescribed as 30 years relaxable by five

years as on 1.1.2004.

4) The respondents (Arvind Singh Chauhan and others) appeared in the preliminary examination conducted by the appellant.

They were declared passed in the said preliminary

examination and were allotted roll numbers for appearing in

the final examination which was to be conducted in May-June

2006. However, the respondents were not permitted by the

appellant-Commission from appearing in the Viva-voce

test/final examination on the ground that they were over

aged.

5) Aggrieved by the aforesaid action of the appellant, the

respondents filed a writ petition before the Hon'ble High

Court of Judicature of M.P Bench at Gwalior, inter alia

requesting the Court to direct the Public Service

Commission not to exclude the respondents and other

similarly situated candidates from participating in the

viva-voce test/final examination and for other ancillary

reliefs.

6) The main contention of the writ petitioners/respondents

before the Learned Single Judge was that as per the

advertisement issued in 2001 they were eligible to appear

in examination as they were below 33 years as on 1.1.2002.

The petitioners had further contended that another

advertisement was issued in the year 2003 and as per Clause

10 of that advertisement, those who were eligible to appear

in the examination of 2001, shall also be eligible to

appear in the later examination. Hence according to the

petitioners, their results were being withheld wrongly by

the Public Service Commission.

7) The case made out by the Public Service Commission was that

the age of the candidates should be 33 as on 1.1.2002, and 35 as on 1.1.2004, to be eligible to participate in the

examination and according to them, none of the writ

petitioners fulfilled the age criteria and therefore the

final results of the petitioners have not been declared.

8) The Learned Single Judge after perusal of the records has

come to the conclusion that no details nor any document was

filed by the writ petitioners to prove that in pursuance to

the earlier advertisement issued in the year 2001 by Public

Service Commission, they had submitted their applications.

The Court while holding that the writ petitioners are not

entitled for any relief, has relied on the observation made

by this Court in the case of Malik Mazhar Sultan v. U.P

Public Service Commission [(2006) 9 SCC 507]. In that case

this Court has observed, that recruitment to service can

only be made in accordance with the Rules and the error, if

any, in the advertisement cannot override the Rules and

create a right in favour of a candidate if otherwise not

eligible according to the Rules. The Learned Judge has also

relied upon Clause 25 of the advertisement issued in the

year 2003, going by which, the Commission is fully

empowered to cancel selection of the candidates at any

stage without giving any prior information to the

candidates. It was also observed, that, considering the

volume of applications it is practically impossible to

scrutinize each and every line of the form and merely

because appellants were permitted to appear in the

preliminary examination, they cannot claim to permit them

to appear in viva voce test/final examination. The Learned

Judge is also of the view that the case referred to by the counsel for the writ petitioners (Sanjay Singh v. UP Public

Service Commission) cannot assist the petitioners. The

Learned Judge has concluded that the respondents were not

entitled to any relief as far as age relaxation was

concerned. Accordingly, he dismissed the writ petition.

9) Aggrieved by the judgment of the Learned Single Judge the

respondent(s) had preferred an appeal before the Division

Bench of the High Court. The Division Bench relying on

certain clauses in the advertisement issued in the year

2003, has concluded that the candidates who had initially

appeared in the examination of 2001, were permitted to

appear in the examination of 2003. According to the

Division Bench, the petitioners were not allowed to appear

in the final examination only on the ground of being over

aged. The Division Bench also has observed that the learned

counsel for the Commission has no objection to consider the

case of the three petitioners as per the advertisement

issued in 2003. Accordingly, the Division Bench allowed

the writ appeals and further directed the Commission to

permit the writ petitioners to appear in the interview and

consider their cases on merit alone.

10) The appellant-Commission had filed a review application

before the High Court requesting the Court to review its

earlier order. In the review application, it was brought

to the notice of the Court that the petitioners had not

submitted the application before the Commission till

29.12.2007, by which time the results of the examination

were already declared. Therefore the respondents were

disentitled from appearing in the final examination. The petitioner had also challenged the finding of the Division

Bench with regard to the so called concession made by their

learned counsel.

11) On consideration of the review application, the High Court

has brought to the fore a Circular dated 22.3.2002, issued

by the Department of General Administration of the State

Government in which it was mentioned that the relaxation in

age extended for a further period of two years and if any

candidate is below the age of 35 years till March 2003, he

will be entitled to file an application for appointment in

the government service. The contention of the petitioners

was that in March 2003, the petitioners were below the age

of 35 years. The contention of the counsel for the

petitioner was that March 2003 could not be considered to

be a cut-off date and the circular simply means that

whoever is below 35 years of age as on March 2003 is

eligible to apply. However, the court observed that the

effect of the circular is that 31st March 2003 has to be

considered as the cut-off date. Accordingly, has rejected

the review petition.

12) We have heard learned counsel for the parties to the lis.

We have given our anxious consideration to the legal issues

raised at the time of hearing these civil appeals. In our

view, the issues that would arise for our consideration

are:

(i) Whether the High Court failed to appreciate that no concession or consent was given on behalf of the petitioner and that there was dispute on almost every aspect of the case?

(ii) Whether the High Court was justified in failing to appreciate the matter in the light of Clause 25 of the advertisement which makes it clear that if there is any error in the application submitted by the candidates, the Commission is fully entitled to cancel the selection of the candidates at any stage without giving any prior intimation to such candidates?

13) Clause 25 of the advertisement issued in the year 2003 reads as

under:-

"The applicant should fill up form very carefully after reading proper instruction given in the advertisement. If any information has been given incomplete, even this is full responsibility of the applicant and his application form can be cancelled at any stage on the ground of error and incomplete. The candidate shall be cancelled at any stage after giving wrong caste certificate or filled up wrong caste in computerized application form and the selection board will take necessary action."

14) Clause 14 of the advertisement issued in the year 2001 states-

"Candidate should ascertain before filling the form that they have completed all qualifications and age limit as per the advertisement and assure that all entries of the application forms have been filled up correctly. This is self responsibility of the candidate that they have completed all qualifications and conditions as prescribed in the advertisement. Candidate should himself examine his qualification before filling up the form and fulfill all qualifications and conditions before sending the application. It does not mean that appearing in the examination or calling for interview, that he has been found qualified."

15) According to the clauses in the advertisement, the fact that

the respondents have passed the preliminary examination does

not mean that their application/candidature is valid. The

Commission is fully authorized to cancel the candidature of

the candidates at any stage without prior intimation. The

respondents also placed reliance on Clause 10 of the

advertisement issued in the year 2003, where according to

their contention, candidates eligible for appearing in the

2001 examinations are also eligible to apply for the 2003 examinations. However the relevant provision in the

advertisement states-

"Those candidates who had submitted their application for 2001 Madhya Pradesh State Service, only one time age relaxation has been given by the department as per letter No. C-3/5/2003/1 dated 14.8.2003 i.e all candidates who have appeared in 2001 State Service Examination, they will be entitled to appear in this examination."

16) The wordings clearly specify that the benefit is available

to only those who have "appeared" for the 2001 examination

and not to those who were "entitled to apply" for the 2001

examination. Also as observed by the Learned Single Judge of

the Madhya Pradesh High Court, there has been no details nor

any document filed by the petitioners to prove that the

petitioners, in pursuance to the earlier advertisement

issued in the year 2001, had submitted their application

forms.

17) As far as the finding of the High Court is concerned, had

the intention of the Commission been to consider March 31,

2003 as a cut off date for eligibility, it would have been

explicitly specified. The Division Bench has referred to the

Circular dated 22.3.2002 issued by the Department of General

Administration of the State Government. The relevant portion

of the Circular reads:

"keeping in view the increasing problem of unemployed youths in the state and keeping the interest of the unemployed youths in mind, the government has again considered and has taken a decision that a further relaxation of 2 years more needs to be given. Meanwhile thereby now from March 2000 to March 2003, the maximum age limit for appointment in government services will be 35 years."

18) Rule 5(C) of the State Examination Rules on which reliance placed by the appellant states :

"A candidate must have attained the age of 21 years and must not have attained the age of 30 years on 1st January next following the date of commencement of the competitive examination."

19) In view of the above discussion, in our considered view, the

Division Bench of the High Court has erred in considering

March 31, 2003 as a cut off date for eligibility, as there is

no explicit mention of the same in the circular.

20) In reply to certain averments in the counter affidavit filed

by the respondents in response to the Special Leave Petition

relating to age relaxation being the discretion of the state

looking at the problems of unemployment and regarding the

authority of the Commission to question the concession in age

requirements, it has been made clear already that the

Commission is not trying to question the age relaxation. The

Commission is merely trying to enforce the age requirements

prescribed by the State Government. On account of no record of

any concession made on the part of the appellants and

considering all the circumstances of the case, it is clear

that the respondents were over aged on the specified cut-off

dates which makes their application liable for cancellation.

21) In view of the above discussion, the appeals are allowed. The

impugned order is set aside. In view of the peculiar facts

and circumstances of the case, parties are directed to bear

their own costs.

....................................J.

TARUN CHATTERJEE] .......................................J.

[ H.L. DATTU ] New Delhi, August 28, 2009