G. Yethirajulu, J.
1. This appeal is directed against the order of a learned single Judge of this Court dated 28-7-1999 dismissing WPNo. 17621 of 1998 filed by the appellant.
2. The appellant is working as an Assistant in the office of the 2nd respondent, which is a local office of the 1st respondent Company. The 1st respondent Company created eight vacancies in the cadre of Senior Assistants to be filled up by promotion from among the eligible assistants working in the Company. In pursuance of that, a notification dated 22-5-1998 was issued by the 2nd respondent calling for applications from eligible employees to the posts of Senior Assistants. They fixed 5-6-1998 as the last date for receipt of applications. The eligibility cut-off date for academic qualification weightage was fixed as 31-12-1997. The appellant and others made applications for Scheduled Caste vacancies. Subsequent thereto, two more vacancies were also sanctioned by the 1st respondent and on 19-6-1998 the 2nd respondent issued another notification for all the ten (10) vacancies fixing the last date of receiving the applications as 24-6-1998. A graduate is entitled for a weightage of 12 marks where as a double graduate or a post graduate is entitled to a weightage of three (03) more marks. The appellant alleged to have appeared for LL.B., final year examination conducted in November/December 1997 and the results were said to be announced in March 1998. He made a request to the 2nd respondent to treat the date of passing the LL.B, examination as December 1997 and give weightage of 15 marks by treating him as a double graduate. When the 2nd respondent sought for clarification from the 1st respondent whether the appellant could be awarded 15 marks for having acquired the LL.B., degree, the 1st respondent replied that since the cut-off date was 31-12-1997, he could not be awarded extra marks for the additional academic qualification. The appellant further alleged that discrimination was shown by the respondents by fixing 31st December of the previous year as cutoff date for weightage of academic qualification and date of presentation of application for weightage of insurance qualification, which is violative of Articles 14, 16 and 21 of the Constitution of India. He therefore sought for issuance of a writ, order or direction particularly one in the nature of Writ of Mandamus directing the respondents to add three (03) more marks for his academic qualification of LL.B., and declare the entire promotion exercise of 1998 to the cadre of Senior Assistants as illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India.
3. The respondents resisted the petition by contending that no discrimination was shown against any candidate and there was uniform policy adopted by them for all the promotions and their action in fixing the cut-off date as 31st December of the previous year for academic qualification and the last date of application for the insurance qualification is not arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India.
4. The learned single Judge after considering the contentions raised by both parties and the ratio laid down in the cases referred in his judgment held that the scope of judicial review with reference to the dates fixed by the respondents is very limited. Therefore, the date fixed by the respondents for academic qualification as 31st December of the previous year is in no way unreasonable or arbitrary. Accordingly the learned single Judge dismissed the writ petition refusing to grant the relief to the appellant as prayed for.
5. The learned Counsel for the appellant Miss E. Parvathi Devi contended that though the result of LL.B., examination was declared in March 1998, it must be deemed to have been declared before 31-12-1997 by virtue of the Doctrine of Relate Back, since the final examination was conducted in November/December 1997. The learned Counsel further contended that the date of passing the examination shall be considered from the date of last examination and not the date of publication of the results. There cannot be two cut-off dates for awarding marks for additional qualifications, one for academic qualification and the other for insurance qualification. Prescribing two cut-off dates would amount to discriminatory treatment and is violative of Articles 14 and 16 of the Constitution of India. The respondents having allowed additional weightage marks for the additional qualification of another employee by name Mr. Koteswara Rao whose result was declared in January discriminated the appellant in giving similar treatment.
6. In the light of the contentions raised by the learned Counsel for the appellant, the following are the points taken up for consideration:
(1) Whether the date of passing LL.B., examination relates back to the date of the last examination for the purpose of promotion?
(2) Whether fixing two cut-off dates for academic qualification and insurance qualification amount to discrimination and violative of Articles 14 and 16 of the Constitution of India?
(3) Whether the appellant is entitled to get the same benefit which was said to be given to one Mr. Koteswara Rao who alleged to have acquired academic qualification subsequent to 31st December of the previous year?
Point No. 1:
7. The learned Counsel for the appellant submitted that though the result of the LL.B., examination of the appellant was declared in March 1998, since he appeared for the said examination in December 1997, it shall be held that the date of passing the LL.B. examination relates back to the last date of examination. The learned Counsel in support of her submission relied on a judgment of the Supreme Court in Chhotu Ram v. State of Haryana, : (2000)10SCC399 .
8. In the above decision, the Supreme Court held that in a situation where a person takes an examination before the cut-off date and the result declared after the cut-off date, there was an administrative order clarifying as to what is to be done. The Court further held that the clarification issued by the Chief Secretary is not in conflict with the statutory Rules inasmuch as it only states that whereby the date on which the Departmental Promotion Committee meets, the result is also declared, - may be subsequent to the cut-off date, - the person must be considered to be eligible with reference to the date of examination if the examination had been conducted before the cut-off date.
9. The principle laid down in the above decision has no direct bearing on the facts of this case.
10. The learned Counsel for the appellant also cited a decision of the Division Bench of this Court in P.Krishna Reddy v. Government of Andhra Pradesh, Unreported judgment of a Division Bench (Sambasiva Rao and Raghwir, JJ.) of this Court in WP No.108 of 1976 dated 26-10-1976, whe rein the Division Bench while answering two important questions viz., 1) the qualifications of a candidate with reference to the date of issue of the notice inviting applications, and 2) the qualification of passing the special test deemed to be acquired on the date of publication of the result or on the date on which the test was held and the candidate appeared therefor, raised in the writ petition held that if a person passes an examination, the date of passing the examination shall be considered to be the date of appearance of the examination and not the date of publication of the results. Merely because publication of results is delayed, a candidate cannot be made to suffer. The Rules do not say that a candidate who has appeared at an examination can be considered to have passed the examination only on publication of results. The subsequent Rules do not show the intention on the part of the rule making authority to depart from the position which was already well-understood. The Bench further held that the 5th respondent must be deemed to have acquired the qualification and it was confirmed by the concerned authorities and the Government. Therefore, there is no reason for the Court to interfere with the decision of the Government.
11. But, in the present case, there is no such instruction from the authorities of the company and they are uniformly following the dates mentioned above for promotions.
12. In K. Nirmala Devi v, V. Vijaya Lakshmi, : 2002(6)ALD539 (DB), there was a proposal to appoint a Head Mistress to the school. As on the date of proposal i.e., 12-6-1995 the appellant passed Account Test Part I and II and the 1st respondent did not qualify herself to be considered for appointment to the said post, as she did not pass the Account Test Part II, though she appeared for the examination prior to the above date, but the result was declared only on 25-10-1995, long after the appellant was considered and appointed for the post of Head Mistress. The Division Bench held that under FR 26 (a) the benefit of qualification accruing on the date following the last date of examination or test which was passed is only for the purpose of fixation of increments and it has no application to the facts of the case.
13. In the light of the above legal position we hold that unless there is a specific Rule regarding the cut-off date for academic qualification, the last date of examination cannot be treated as the date of passing the examination for the purpose of giving weightage for such qualification.
Point No. 2:
14. In service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and it cannot be put to the touchstone of the fortunes of some individuals to test the reasonableness of the said rule. The respondents have given a convincing reason for fixing one cut-off date for academic qualifications and another cut-off date for the insurance qualification. So far as the academic qualifications are concerned, they will be acquired by the candidates from various universities and those universities conduct examinations on different dates depending upon their convenience and academic calendar and there will be uncertainty about the completion of the examination schedule of various universities by a particular date. The respondents thought that it would be convenient to all the candidates irrespective of the dates of examination and the announcement of results if the cut-off date for academic qualifications is fixed as 31st December of the previous year. So far as the insurance qualifications are concerned, the respondents submitted that those examinations will be conducted by the Insurance Institute of India, Bombay in October of every year on all India basis and the results will be announced invariably in February or March in the next year. Since the announcement of the results of the examination on all India basis are normally delayed, the respondents in order to get-over such situation made a provision to give weightage marks for such insurance qualification even if the results are declared after 31 st December of the year in which the examination was conducted. We are convinced with the reasoning given by the respondents.
15. The appellant is contending that fixing one cut-off date to give weightage for academic qualifications and fixing another cut-off date for giving weightage to insurance qualification amounts to discrimination and is violative of Articles 14 and 16 of the Constitution of India. In this regard, there is well settled legal position which we wish to refer in the forthcoming discussion.
16. In Union of India v. Sudhir Kumar Jaiswal, : (1995)ILLJ1773SC , while dealing with the cut-off date for determining the eligibility in the matter of age of the candidates for the examination for recruitment to the Indian Administrative Service, the Supreme Court observed as follows:
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 before 1tt August, can be said to be 'very wide off any reasonable mark' or so capricious or whimsical as to permit judicial interference.
17. In University Grants Commission v. Sadhana Chaudhary, : (1997)IILLJ272SC , while dealing with the validity of the cut-off date in respect of a provision in UGC Regulations, 1991 exempting certain candidates from the requirement of clearing the prescribed eligibility test the Supreme Court observed as follows:
It is settled law that the choice of a date as a basis for classification 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. When fixing a line or a point is necessary and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless it is very wide off the reasonable mark.
18. In the case covered by the above decision, prior to the making of the 1991 UGC Regulations there was no statutory requirement for clearing the eligibility test for the purpose of appointment to the posts of Lecturer. Such a requirement was introduced for the first time by the said regulations. At the time when the regulations were made, the provisions contained in the 1982 Regulations had given a go-bye to a legitimate expectation that a person having a Ph.D. or M.Phil Degree or having good academic record, as prescribed under the 1982 Regulations, could be eligible for appointment to the post of Lecturer without anything more. While introducing the requirement of clearing the eligibility test in the 1991 Regulations, the UGC did not intend to deprive a person who had obtained M.Phil Degree or Ph.D. Degree prior to the making of 1991 Regulations of their legitimate expectation in the manner of appointment to the post of Lecturer in Universities or Colleges. Therefore, in 1991 Regulations a provision was made for granting exemption to such candidates with the condition that they should have passed M.Phil examination or should have submitted Ph.D. Thesis by a particular date, such candidates constituting a distinct class, who could be treated separately insofar as the requirement of clearing the eligibility test was concerned. The Supreme Court therefore observed that it cannot be held that the exemption that has been granted by the amendment introduced in the 1991 Regulations is violative of right to equality guaranteed under Article 14 of the Constitution.
19. In Dr. Ami Lal Bhat v. State of Rajasthan, : AIR1997SC2964 , the State of Rajasthan prescribed in its various recruitment rules that age limit for recruitment shall be determined on the 'first day of January following the last date fixed for receipt of the applications'. The candidates who became over-aged according to this cut-off date, contended that the age limit should have been determined on the last date of receipt of the applications. The Supreme Court while rejecting this contention held as follows:
Fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is in the discretion of the rule-making authority or the employer. One must accept that such a manner as would avoid hardship in all conceivable cases. As soon as a cutoff date is fixed there will be some persons who fall on the right side of the cut-off date and some on the wrong side. 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. Fixing an independent cut-off date, far from being arbitrary, makes for certainty in determining the maximum age. Unless the date is grossly unreasonable, the Court would be reluctant to strike down such a cut-off date.
20. In Chhotu Ram (supra) Rule 9 of the Haryana Service of Engineers Class II (Public Works Department, Irrigation Branch) Rules, 1973 says that the cut-off date will be the first of January of the year concerned. On 23-7-1973 the Chief Secretary, Government of Haryana, in a matter relating to promotion of Section Officers in the Irrigation Department issued a clarification which reads as follows:
Commissioner of Administrative Department and Chief Secretary has reconsidered and decided that eligibility may be taken from the date of completion of examinations, if by the time, the matter regarding promotion is taken up, the result of examination had been declared.
The Administrative Department is also advised that the date of examination and date of declaration of result should be regulated in such manner that the result of any examination held in a particular year should be declared by the end of December positively.
21. In the case covered by the above decision, the Supreme Court observed as follows:
5. It is true that Rule 9 of the Haryana Service of Engineers Class II (Public Works Department, Irrigation Branch) Rules says that the cut-off date will be 1-1-1980. In asituation where a person takes an examination before the cut-off date and the result is declared after the cut-off date the abovesaid administrative order dated 23-7-1973 clarifies as to what is to be done. In our view the said clarification is not in conflict with the statutory rules, inasmuch as it only states that where by the date on which the Departmental Promotion Committee meets, the result is also declared, -- may be subsequent to the cut-off date, - the person must be considered to be eligible with reference to the date of examination if the examination had been conducted before the cut-off date. We do not, therefore, see any conflict between the clarification dated 23-7-1973 and the statutory rules. ...
22. The above decision of the Supreme Court makes the position very clear that if there is a Rule relating to the promotions in a particular department providing for consideration of writing examination before the cut-off date and result after the cut-off date, such candidate can be considered on the basis that he was qualified by the cutoff date. There will be no ambiguity about the eligibility of such candidates for that purpose. In the absence of such provision and the Rules, what is the principle that is to be applied has been clarified by the decisions of the Supreme Court, as referred supra.
23. In Union of India v. M. V. Valliappan, : [1999]238ITR1027(SC) , creation of two distinct classes under Section 171(9) of the Income Tax Act by conferring benefit upon those classes who have partly partitioned their property prior to the cut-off date and not giving the same benefit to the others who partitioned their property after the cut-off date was questioned on the ground that creation of the said provision by the Central Government is violative of Article 14 of the Constitution of India. The Supreme Court held that if there is a rational nexus on the basis of which differentiation has been made with the object sought to be achieved by a particular provision, then such differentiation is not discriminatory and does not violate the provisions of Article 14 of the Constitution. It is settled law that the choice of a date as a basis for classification 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.
24. In M. V. Chalapathi Rao v. State of A.P., : 2001(3)ALD3 , a Division Bench of this Court while considering the question regarding the classification made by the Government treating the employees retired prior to the cut-off date and those retired on or after that date as separate groups in the matter of application of enhanced gratuity, after referring to various decisions of the apex Court viz., Union of India v. Rama Murthy, : (1995)IILLJ646SC , D.S. Nakara v. Union of India, : (1983)ILLJ104SC , India Ex-Service League v. Union of India, : [1991]1SCR158 , Commander Head Quarter, Cal. v. Cap. Biplabendra Chanda, : AIR1997SC2607 , State of Rajasthan v. Rajasthan Pensioner Samaj, : AIR1991SC1743 , held that the classification made by the State cannot be said to be unreasonable and it does not offend Article 14 of the Constitution of India. The wisdom of the Government in making such classification cannot be interfered with.
25. In B. Rayappa v. Union of India, : 2001(5)ALT114 , a Division Bench of this Court while considering the fixing of cut-off date for 5 years service as eligibility to the promotional posts of Postal Superintendents Service, Group-B, held that fixing cut-off date is executive function and unless the fixation of the cut-off date is grossly arbitrary and has no nexus, the Court should not ordinarily interfere.
26. In U.P.Public Service Commission v. Alpana, : [1994]1SCR131 , the Supreme Court while distinguishing the principle laid down in Ashok Kumar Sharma v. Chander Shekher, 1993 Supp. (II) SCC 611, held that since the result of the respondent was not declared till the last date of submitting the application forms, she could not be held eligible for submitting the application for the job.
27. In the light of the above legal position and established propositions of law, we are of the view that the learned single Judge has rightly held that the scope of judicial review with reference to the cut-off date fixed by the authorities is very limited. Therefore, we hold that there are no grounds to interfere with the finding of the learned single Judge on this point. We further hold that the fixing of cut-off date for academic qualifications as 31 st December of the previous year is not unreasonable or arbitrary and violative of Article 14 of the Constitution of India.
Point No, 3:
28. The appellant is contending that one Mr. Koteswara Rao was given the weightage of marks for graduation in the year 1996, though the results were declared in January of the year in which the promotions were made. Therefore, the appellant is entitled for the same benefit which was extended to Mr. Koteswara Rao.
29. In para 8 of the affidavit filed in support of the writ petition the petitioner (appellant herein) mentioned that one Mr.MR. Koteswara Rao, S.R.No.26437, who obtained degree qualification in the year 1996 after declaration of the results in January 1996, which was after the base date for the promotion exercise, was promoted to the cadre of Assistant from sub-staff after awarding him three (03) additional marks for the extra degree qualification and posted at Tadepalligudem. He therefore pleaded that on the same analogy he should also be allowed additional three marks for acquiring LL.B. Degree much before the base date for promotion exercise and production of provisional certificate before the last date for submission of applications for promotions.
30. In para 7 of the counter-affidavit the 2nd respondent mentioned that the policy regarding the promotions and weightage marks for acquiring higher qualifications were clearly spelled out by the 1st respondent only in March 1997 and circulated to all the Regional Offices. Since the policy was strictly implemented from March 1997 without any deviation, the promotions which took place in 1996 cannot be brought into light as the policy was not clarified during that period. The 2nd respondent therefore submitted that the alleged discrimination of the petitioner vis-a-vis the candidates who were promoted in the earlier years does not arise.
31. In para 5 of the reply affidavit the petitioner mentioned that the 2nd respondent was trying to wriggle out from a bad situation having committed a wrong by taking reviews under the clarificatory circular issued in March 1997, but the same will be found to be untrue because the promotion policy even before 1996 clearly laid down that weightage of marks for academic qualifications are to be allowed only if the results were declared before the base date i.e., 31st December of the previous year. He further stated that there is no reason why the same treatment cannot be meted out to him when the LL.B. results got postponed due to pendency of a matter in High Court and declared much later than the normal time.
32. The learned single Judge in para 18 of the judgment after taking into consideration the respective pleadings of the parties observed as follows:. Even assuming that the respondent-company has committed a mistake in awarding the marks to Mr.Koteswar Rao in the year 1996, it does not entitle the petitioner for a similar relief, unless the petitioner satisfies this Court that he is entitled for such relief....
33. The respondents are repeatedly asserting that they are uniformly applying the cut-off date to all the candidates who are being considered for promotion whenever they were acquiring higher qualification and they did not show any discrimination among the candidates. We have already observed that the scope of judicial review with reference to the cut-off date fixed by the authorities is very limited. We, therefore, are of the view that the learned single Judge rightly rejected the plea of the appellant to give similar treatment as that of Mr.Koteswar Rao, This point is accordingly held against the appellant.
34. In the light of the discussion and the findings under various points, we find no ground to interfere with the judgment of the learned single Judge. The appeal is accordingly dismissed. No costs.