Asla Noor v. Kerala Public Service Commission and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** **O.P.(KAT).No. 75 of 2019** **AGAINST THE ORDER DATED 04-02-2019 IN O.A.(EKM)NO.226/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM** ## **PETITIONER/APPLICANT:** **ASLA NOOR, AGED 21 YEARS AND 11 MONTHS, D/O.ABDUNNUR T.V., VAZHAYIL HOUSE, J.T.ROAD, VADAKARA-I, KOZHIKODE, PIN - 673 101.** **BY ADV. SRI.P.K.IBRAHIM** ## **RESPONDENTS/RESPONDENTS:** **1 KERALA PUBLIC SERVICE COMMISSION, KPSC OFFICE, THULASI HILL, PATTOM, THIRUVANANTHAPURAM, KERALA - 695 004, REPRESENTED BY ITS SECRETARY. 2 THE STATE OF KERALA, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001, REPRESENTED BY ITS PRINCIPAL SECRETARY.** **3 THE STATE OF KERALA, DEPARTMENT OF IRRIGATION, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001, REPRESENTED BY ITS SECRETARY.** **R1 BY SRI.P.C.SASIDHARAN, SC FOR KPSC R2 & R3 BY SRI.T.RAJASEKHARAN NAIR, SR.GOVT.PLEADER** **THIS OP(KAT)HAVING BEEN FINALLY HEARD ON 12.03.2019, THE COURT ON 19.03.2019 DELIVERED THE FOLLOWING:** OP(KAT)No.75/2019 2 “CR” ## Judgment ## Chitambaresh, J. - 1.Applications were invited online from qualified candidates for appointment to the post of Assistant Engineer (Civil) in the Kerala Government Service by notification of the Kerala Public Service Commission ('PSC' for short). The notification published in the Extra-ordinary Gazette dated 29.12.2018 mentioned the last date for online application as 30.1.2019 specifying the category number also. The notification prescribed the age limit for direct recruitment as 21-40 and explicitly stated that only candidates born between 2.1.1978 and 1.1.1997 are eligible to apply. It was also stated therein that usual age relaxation as specified in the General Conditions would be given to candidates belonging to SC/ST and Other Backward Communities. - 2.The petitioner who was born on 28.2.1997 and acquired a B.Tech degree from the Mahatma Gandhi University with First Class on an average Cumulative Grade Point of 8.46 also attempted to apply online. But the application could not be uploaded since the OP(KAT)No.75/2019 3 software designed refused to accept the same for the reason that the petitioner is a candidate born after 1.1.1997. The contention of the petitioner is that she has completed 21 years of age as on the midnight of 30.1.2019 which is the last date for receipt of the application as per the notification. The Kerala Administrative Tribunal ('Tribunal' for short) refused to countenance the plea of the petitioner and hence this original petition challenging the non-acceptance. - 3.We heard Mr P.K.Ibrahim, Advocate on behalf of the petitioner and Mr P.C.Sasidharan, Standing Counsel for the PSC as well as Mr T.Rajasekharan Nair, Senior Government Pleader in the case. - 4.It would suffice in the normal circumstances that a candidate need satisfy the qualifications prescribed as on the last date for submitting application though this case has a distinguishing feature. The recruitment here is governed by the Kerala Engineering Service (Civil and General Branch) Rules, 1965 ('Rules' for short) and Rule 4A thereof prescribes the qualification regarding age. The relevant part of the Rule is extracted hereunder: OP(KAT)No.75/2019 4 “ 4A. Qualification regarding age - No person shall be eligible for appointment by direct recruitment if he has not completed 21 years of age or has completed 39 years of age on the first day of January of the year in which the applications for appointment are invited.” The first day of January of the year in which applications for appointment are invited in the instant case is 1.1.2018 since the notification was published by the PSC in the Extra-ordinary Gazette dated 29.12.2018. The date cannot be pushed to the year 2019 (even though the last date for submitting application falls on 2019) since the year in which the applications are invited is relevant. 5.The above Rule is strictly in consonance with Public Services (Date for Determination of Age for Eligibility for Appointment) Rules, 1977 ('Age Rules' for short) and Rule 2 thereof is as follows: “ 2. Date for determination of age for eligibility for appointment to Public Services - With effect on and from the commencement of these rules, the Special Rules for the various State Services and Subordinate OP(KAT)No.75/2019 5 Services, in force at such commencement, shall stand modified as if the date specified in those Special Rules for determination of the age for eligibility for appointment to posts included in the various services had been modified as the 1[st] January of the year in which applications for appointment to such posts are invited: Provided that nothing in this rule shall apply to any appointment to be made in pursuance of any notification inviting applications, published before the commencement of these rules.” The criteria for determination of the age for eligibility for appointment to the post thus stand modified as the 1[st] January of the year in which the applications are invited even if there is anything contrary in the Rules. The Explanatory Note to the Age Rules reflects that it is intended to ensure that the conditions of eligibility by age remain the same for the whole of the year. This is in view of the suggestion of the Government of India that a person who was eligible on 1[st] January of a particular year shall not be disqualified on the ground of age later in that year. All Special Rules therefore stand modified as regards the age determination by virtue of the Age Rules made under Section 2(1) of the Kerala Public Services Act, 1968. OP(KAT)No.75/2019 6 6.It was contended that the fixation of the 1[st] January of the year in which applications for appointment are invited for the purpose of determination of the age for eligibility has no rational nexus for the object sought to be achieved. Reliance was placed on D.S.Nakara v. Union of India [(1983) 1 SCC 305] and Union of India and another v. M/s.Parameswaran Match Works [AIR 1974 SC 2349] in support of the contention. But it has been held in Dr.Ami Lal Bhat v. State of Rajasthan and others [J.T.1997(6) 72] that a cut off date cannot be fixed with any mathematical precision to avoid hardship in all conceivable cases. The following observations are apposite: “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 dependent on the date when each department issues an advertisement, and the date which each department concerned fixes as the last date for OP(KAT)No.75/2019 7 receiving applications. A person who may fall 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 why 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 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.” (emphasis supplied) Thus the fixation of a cut off date for determining the age required for a post is in the discretion of the rule making authority {See A.P.Public Service Commission v. Sharat Chandra and others [(1990) 2 SCC 669]}. - 7.The petitioner has to thank her stars for not completing 21 years of age as on the 1[st] January of the year 2018 during which the OP(KAT)No.75/2019 8 notification inviting applications for the post was published in the Extra-ordinary Gazette. The petitioner has completed only 20 years and 10 months as on 1.1.2018 and her online application for appointment to the post was rightly not accepted for scrutiny. We confirm the order of the Tribunal reminding the petitioner that she is young enough and that other avenues for employment are open in view of her excellent academic record. The original petition is dismissed. No costs. Sd/V. CHITAMBARESH, JUDGE Sd/A.M. BABU, JUDGE **Sha/150319** OP(KAT)No.75/2019 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF O.A.(EKM) N0.226 OF 2019 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL AT ERNAKULAM.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 04/02/2019 IN OA(EKM) NO.226/2019 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH AT ERNAKULAM.** ## **RESPONDENTS' EXHIBITS: NIL.**