Shivam Siddharth And Ors vs Union Of India And Ors

Financial Year 2016-17 (Assessment Year 2017-

2018)","Financial Year 2015-16 (Assessment Year 2016-

2017)","Financial Year 2014-15 (Assessment Year 2015-

2016)

,,

In view of the above, you are requested to furnish the following additional information:-",,

(i) Source of Income of your mother for last three financial years.,,

(ii) Whether your mother is/was in Government Service.,,

(iii) All the salary slips of Financial years 2017-18 in respect of your mother.,,

You are requested to provide the requisite information on the following email id- [email protected] by 5 p.m. on 25.05.2018 positively. Further, hard",,

copy of the information may also be sent by Speed Post to the undersigned.,,

This may be treated as Most urgent.â€​,,

Promptly enough, the applicant submitted his reply on 24.05.2018. It is only on 01.08.2018 that the applicant came forward with the plea that the",,

income of his parents for the year 2016-2017 may be not taken into account and the relevant years must be 2015-2016, 2014-2015 and 2013-2014.",,

It is not as if the respondents have come forward with the form indicating three years as 2016-2017, 2015-2016 and 2014-2015 for the first time in",,

the year 2018. The proforma was enclosed to the notification itself. The applicant understood the purport thereof and furnished the information.,,

Having furnished the information and participated in the examination he cannot challenge that once it emerged that he was not successful. The,,

principles of acquiescence and estoppel come into play.,,

After discussing various aspects of the plan of examination, the Hon‟ble Delhi High Court in the matter of The Secretary, M/o Personal.. vs. Tanu",,

Kashyap and Anr., decided on 05.10.2007, held as under:-",,

“14. From the Plan of Examination it is clear that it consists of two successive stages, namely, Preliminary Examination (objective type) and Main",,

Examination (written and interview). Insofar as Preliminary Examination is concerned, it is only 'for selection of candidates for the Main Examination'.",,

Thus, candidates are to be filtered and short-listed to enable them to appear in the Main Examination. That is the purpose of holding Preliminary",,

Examination. It is the Main Examination which is for the selection of candidates for the 'various Services and posts'. Not only that, a candidate is to",,

apply afresh for appointment to the Main Examination and, therefore, process for Main Examination starts after the application for the said",,

examination is given by the candidates who have become eligible to appear in the Main Examination. Even the age limit which is prescribed, i.e. 30",,

years, has reference to the Main Examination as the candidate should not attain the age of 30 years on 1.8.2004 Preliminary Examination was held on",,

16.5.2004 and, therefore, this date had no relevance with the age limit. It is only after the results of Preliminary Examination were declared and the",,

applications for Main Examination submitted in August 2004 that the date of 1.8.2004 is relevant. Reading of this clause cumulatively would clearly,,

demonstrate that the reference to Services and posts is in the Main Examination and likewise, the reference of date mentioned for the purpose of age",,

limit is in the context of Main Examination.,,

Going by the aforesaid criteria, the income for three years has to be seen as on the date of making application for Main Examination and not the",,

Preliminary Examination. Since this application was given in August 2004 by the respondent, the income for three years, which was to be taken into",,

consideration, would be 2001-02, 2002-03 and 2003- 4. In all these three years, income of the respondent No. 1's father should have been more than",,

Rs. 2.50 lacs to bring him within the sweep of the creamy layer. However, as the respondent No. 1's father had retired on 31.12.2002, he had no",,

income for the year 2003-04.†Though learned counsel for the applicant submits that the notification with reference to that judgment did not contain a,,

clauses similar to clauses 24 & 25 in the notification issued for the present examination, we are of the view that it makes no difference.",,

This is not a case where the respondents have exercised any discretion. The years that are relevant for the purpose of determining the creamy,,

layer were specifically indicated in the notification itself. Even where the selecting agency exercises the discretion in the context of prescribing cut off,,

date, the Hon‟ble Supreme Court virtually conceded that freedom to the agencies.",,

In the recent judgment in Hirandra Kumar vs. High Court of Judicature at Allahabad & Anr. Writ Petition (Civil) No.1343 of 2018 decided on,,

19.01.2019, the Hon‟ble Supreme Court framed the issue as under:-",,

“The third limb of the submissions is that the prescription of an age limit of 45 years (48 years in the case of candidates belonging to the Scheduled,,

Caste and Scheduled Tribe Category) with reference to the first day of January of the year following the year in which the notice inviting application,,

is published, is arbitrary and violative of Article 14 of the Constitution.â€​",,

In the aforesaid judgment, the Hon‟ble Supreme Court has quoted para 10 of Dr. Ami Lal Bhat v. State of Rajasthan 1997 (6) SCC 614:-",,

“5. ….In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is 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 cannot be fixed with any 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, arbitary unless the cut-off date is",,

so wide off the mark as to make it wholly unreasonable.†The same view has been adopted in other decisions, including those in (i) State of Bihar v",,

Ramjee Prasad12 (“Ramjee Prasadâ€); (ii) Union of India v Sudheer Kumar Jaiswal13 (“Sudheer Kumar Jaiswalâ€); (iii) Union of India v,,

Shivbachan Rai14 (“Shivbachan Raiâ€​);,,

When such is his latitude given to the selecting agency, mere adherence to the procedure which is already indicated in the notification cannot be",,

treated as arbitrary or unconstitutional. Though reliance is placed by the learned counsel for the applicant upon the judgments of Hon‟ble Supreme,,

Court in Ashok Kumar Sharma and Others vs. Chander Shekhar and Another (1997) 4 SCC 1 8and Rakesh Kumar Sharma vs. State (NCT of Delhi),,

and Others (2013) 11 SCC 58, we find that the aspect of creamy layer or the discretion of the selecting agency to fix the dates was not the subject",,

matter thereof.,,

On facts, it is not in dispute that the applicant would be within creamy layer if the income of his parents for the years which are mentioned in the",,

forms that are made part of the application, is taken into account.",,

We do not find any merit in the OA. It is accordingly dismissed.,,