The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during Covid 19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution. (Para 47)
RACHNA & ORS. V/S UNION OF INDIA & ANR.
WRIT PETITION (CIVIL) NO(s). 1410 OF 2020 - 24 February 2021
The Hon’ble Supreme Court consisting of Justice A.M Khanwilkar, Justice Indu Malhotra, and Justice Ajay Rastogi held in this case that the judicial review of a policy decision and to issue a mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to make a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, a certain creative process is involved. The Courts have the jurisdiction to declare the law unconstitutional. That too, where it is called for. The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right. A detailed note has been made after hearing the arguments of both parties.
This case involves a batch of petitioners who were hopeful that in their last attempt, they may qualify in the Civil Services (Preliminary) Examination, 2020 (in short “Examination 2020”) which was held on 4th October 2020 but when they failed to achieve their goal, 1 approached this Court by filing the instant writ petition under Article 32 of the Constitution seeking mandamus to the 1st respondent to extend one additional attempt to the petitioners/intervenors as they are being barred from attempting the examination in future on account of exhausting of available attempts or on account of age bar subsequent to Examination 2020. The scheme of Rules 2020 published on 12th February 2020 is a complete code for the purposes of final selection to civil services. The parameters prescribed for eligibility with regard to the number of attempts and age have been provided under Rule 4 and Rule 6 of the Rules 2020. (Refer to Para 5 of the judgment).
It is noted that, of the candidates who appear in the open category in the examination, they are permitted six attempts but for the candidates who are the members of Scheduled Castes and Scheduled Tribes, there is no restriction on the number of attempts provided, they are otherwise eligible. For the candidates who are belonging to OBC/EWS category, they can avail of nine attempts. A clarification has further been made that if the candidate appears even in one paper of the preliminary examination, it shall be deemed to be treated as an attempt. At the same time under Rule 6, the age at the entry point is 21 years and exit at the age of 32 years. But the upper age limit is relaxed able to the categories of vertical/horizontal reservations and there is no 7 such enabling provision granting relaxation in the upper age limit to the candidates belonging to the general category as such those candidates of the general category who have attained the age of 32 years on 1st August 2020 as in the instant case became ineligible to participate in the ensuing Civil Services Examination, 2021(in short “CSE 2021”).
Taking note of the unlock 1.0 guidelines published on 5th June 2020, the Commission decided to conduct the preliminary examination on 4th October 2020. Several candidates submitted their objections. Taking note thereof, the Commission allowed the candidates to submit their revised choice of examination center by its letter dated 1st July 2020 and further opened the window for withdrawal of the application from 1st August 2020 to 8th August 2020. When the present petitioners/intervenors failed to qualify in the preliminary examination held on 4th October 2020 by the Commission, they approached this Court by filing of the instant writ petition, and this Court took note of the fact that in the light of the order passed in the earlier proceedings dated 30th September 2020, the decision of the competent authority to fulfill the legitimate aspirations of the candidates was still pending with the authority. During the pendency of the writ petition in deference to this Court, a decision was taken by the 1st respondent and placed for perusal dated 5th February 2021 in which it was agreed in principle to give one time-restricted relaxation, limited to CSE 2021 to only those candidates who appeared in Examination 2020 as their last permissible attempt and otherwise are not age barred from appearing in CSE 2021, and no relaxation to the candidates will be given who have not exhausted their permissible number of attempts or to those candidates who are otherwise age barred from appearing in CSE 2021.
Learned counsel for the petitioners submitted that petitioners are placed in the disadvantageous position with the onset of the pandemic and due to the unprecedented measures imposed in the wake thereof. That apart, candidates working in essential services did not have the benefit of seeking leave or claiming exemption from duty/overtime duty looking at the nature of their services and in the light of invocation of The Essential Services Maintenance Act, 1968 and The Disaster Management Act, 2005. With stating further that it is clearly violating Article 14 and 21 of the Constitution.
Learned counsel for the intervenors in addition further submitted that the discretion exercised by the 1st respondent dated 5th February, 2021 to grant one time relaxation limited to only those candidates who appeared for Examination 2020 as their last permissible attempt and otherwise not agebared from appearing in CSE 2021 with no relaxation to the candidates who have not exhausted their permissible number of attempts or to those candidates who are otherwise age barred from appearing in CSE 2021 is not a rational decision and no such classification could be made amongst the group of candidates who had participated in Examination 2020 as a last attempt and are debarred to appear in CSE 2021 because of the attempt being exhausted or having crossed the upper age limit and it was expected from the 1st respondent to take a holistic view of the situation and grant one 16 time relaxation to all the candidates who had participated in Examination 2020 regardless of the fact whether one has availed all the attempts or crossed the age barrier disqualifying to appear in CSE 2021. With stating further that in the given circumstances, at least taking a lenient and a holistic view of the matter, this Court may exercise its jurisdiction under Article 142 of the Constitution granting one-time relaxation to the candidates who appeared in Examination 2020 with one additional attempt regardless of the fact whether one has exhausted the number of attempts or crossed the upper age limit as prescribed under the Rules 2020 and it does not affect either the integrity of the examination or any restriction on the prospective participants of CSE 2021 and to those who have already availed the attempts.
After hearing out both the parties, the court stated the issue with regard to the case, “The question that emerges for our consideration is that whether the petitioners/intervenors and 23 other similarly placed candidates are entitled to another/additional chance for CSE 2021 on account of the unprecedented Covid19 pandemic which as alleged has deprived them from effectively participating in the Examination 2020”. (Para 25)
With regard to the above, the court stated that “There is no doubt that for India or for the rest of the world, Covid19 has been a disaster of unprecedented proportions. The crisis of Covid-19 pandemic crisis has provided the sternest test for disaster management response in most countries, including India. Due to unprecedented spread of the virus, the world had gone into a virtual lockdown as several countries initiated strict screening of potential cases introduced in their territory. Two of the most legal instruments are the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 amended in the year 2020.” (Para 26)
Further stating the court held, “Under the scheme of Rules 2020, mere filling up of the form is not sufficient to avail an attempt. If someone appeared in either of the paper of the preliminary examination, that was considered to be an attempt availed by the candidate and, in the given situation, after the application form was filled, the candidates who wanted to withdraw their application form at the later stage because of the Covid-19 pandemic, the commission took a policy decision to open the window for the second time, which in the ordinary course is not available under the scheme of rules, for the candidates who intended to withdraw their application from 1st August, 2020 to 8th August, 2020. Since the examination was scheduled for 4th October, 2020 only those candidates were left who were mentally prepared to appear and willing to avail an opportunity of appearing in the Examination 2020 and after appearing in the examination, 29 when they could not qualify, it has given a way to the present litigation on the specious ground of Covid19 pandemic that they were unable to effectively participate in the process of selection which has been initiated by the Commission in holding preliminary examination on 4th October, 2020”. (Para 34)
With reference to the case law of Union of India and Others Vs. M. Selvakumar and Another 2017(3) SCC 504, the court held that “Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to make a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, a certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right. (Para 45)
Concluding, the court held that;
“The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during Covid 19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution. We, however, make it clear that this decision would not restrict the 1st respondent or the executive in exercising its discretion in meeting out the nature of difficulties as being projected to this Court, if come across in future in dealing with the situation, if required”. (Para 48)
Eventually, the petition was failed and was accordingly dismissed, with all the pending application(s), if any, was disposed of.
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Aaron Varughese
