Rachna & Ors. vs Union of India & Anr.

HELD: 1.1 The syllabus of the preliminary examination has not changed since 2015 and after the Rules for Competitive examination 2020 were notified by the 1st respondent for Civil Services Exam 2020, the notice, was published on 12.2.2020 and the scheduled date of the examination was fixed on 31st May, 2020 but because of the unprecedented situation of Covid19 pandemic, the Commission took a policy decision to defer the examination and in the changed situation, after there was a relaxation in the lockdown, ultimately on 5th June, 2020 took a decision to hold the examination on 4 th October 2020 and, therefore, instead of three months, the candidates got additional five months (i.e. eight months) to which one ordinarily can prepare for appearing in the examination in terms of the scheme of Rules 2020. [Para 33][223-A-D]

1.2 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, when they could not qualify, it has given a way to the instant litigation on the specious ground of Covid-19 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][223-D-G]

1.3 This court cannot loose sight of the fact that apart from the present Examination 2020, remedial measures were adopted for the candidates who had participated in the various examinations/recruitment tests held for Central services by the Commission at the given point of time during the Covid 19 pandemic and apart from that, the State Commissions/recruiting agencies must have conducted their examinations/recruitment tests for various services and merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020. [Para 35][223-G-H; 224-A-C]

1.4 There are limited attempts for the candidates who appeared in the general category and the scheme of Rules 2020 does not provide any discretion to the 1st respondent to grant relaxation either in attempt or in age and any exercise of discretion which does not vest with the 1st respondent, if exercised, may go in contravention to the scheme of Rules 2020. [Para 36][224-CD]

1.5 Taking note of the order of this Court dated 30.9.2020 passed in WP(C) No. 1012 of 2020 in the earlier proceedings, this Court has shown some sympathy for the candidates who were having their last attempt and were also likely to become age barred for next examination, if any indulgence could be shown to them. In compliance of the order of this Court, the 1st respondent made endeavour to find out a way which is possible to give solace to such candidates and placed it before this Court that too with reservation that there is a possibility in providing one extra attempt for the candidates who had availed the last and final attempt in Examination 2020 provided they are within their respective age brackets as provided under Rule 6 of the Rules 2020. [Para 37][224-D-F]

1.6 If an additional attempt remains restricted to the last attemptees for the reason that they had suffered during Covid 19 pandemic, all attemptees irrespective of the nature of attempt (i.e. 1st, 2nd etc.) who appeared in Examination 2020 must have faced the same consequences as being faced by the writ petitioners and each one of them have suffered in one way or the other during the Covid-19 pandemic. At the same time, this reasoning would equally apply to those who have crossed the upper age barrier. More so, when no discretion is left with the 1st respondent to grant relaxation in the age bracket to the candidates other than provided under Rule 6 of the scheme of Rules 2020 which indeed the present petitioners are not entitled to claim as a matter of right and that apart, those who have withdrawn their forms either because of lack of preparation or because of some personal reasons but have crossed the upper age limit to appear in CSE 2021, they would also be equally entitled to claim and no distinction could be made whether the candidate has appeared in the Examination 2020 and availed the last attempt or attempts is still available at his disposal or has crossed the upper age limit. [Para 38][224-H; 225-A-D]

1.7 Any concession either in attempt or age is not available under the scheme of Rules 2020, at the same time, proposal which has been placed by the 1st respondent apart from complaint made inter se by the petitioners/intervenors themselves of being discriminatory in character, it is advisable to avoid this situation and any relaxation which is not permissible either in attempt or age under the scheme of Rules 2020 apart from being in contravention to the rules, it may be discriminatory and it is advisable not to exercise discretion in implementing what being proposed by the 1st respondent in compliance of the order of this Court dated 30th September, 2020. [Para 39][225-D-F]

1.8 The submission that discretion has been exercised by the respondent as a matter of policy in the earlier selections and the present petitioners have a legitimate expectation that the Government must exercise its discretion to overcome the unprecedented situation which the petitioners have faced while appearing in the Examination 2020 and their right of fair consideration and effective participation in the selection process has been denied to them which is in violation of Arts. 14 and 21 of the Constitution, is without substance for the reason that the policy decisions which had been taken by the executive on earlier occasions of which a reference has been made always depend on the facts and circumstances at the given point of time and has to be tested independently in the circumstances in which it has been exercised by the competent authority or the 1st respondent as in the instant case. [Para 40-41][225-F-H; 226-A-B]

1.9 It was submitted that there is always a change in the upper age limit and number of attempts in different spell and further emphasis was that in the year 2015, the 1st respondent allowed one more attempt in the Civil Service Examination 2015 for the candidates who appeared in CSE 2011. Although the justification has been tendered by the respondents in their response that as there was a substantial change in the pattern of Civil Service (Preliminary) Examination 2011, in the given circumstances, the 1st respondent in its wisdom considered it appropriate to grant one more attempt in CSE, 2015 to such candidates who appeared in Civil Service Examination, 2011 either due to reaching upper age limit or due to exhausting of number of attempts and that was the given situation which prevailed upon the 1 st respondent in taking a policy decision in granting permission but that cannot be made to be the basis or a foundation for the petitioners to site as a precedent in claiming to seek one additional attempt as a matter of right which is not permissible under the scheme of Rules 2020 or with the aid of Art. 14 of the Constitution to take a call in meeting out the difficulties which have been faced as alleged in the given circumstance. [Para 42][226-B-E]

2.1 Policy decisions are open for judicial review by this Court for a very limited purpose and this Court can interfere into the realm of public policy so framed if it is either absolutely capricious, totally arbitrary or not informed of reasons. [Para 43]

Union of India and Others vs. M. Selvakumar and Another (2017) 3 SCC 504 : [2017] 4 SCR 137 - relied on.

2.2 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 take 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, 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. Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for the reason that there was a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the CSE, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right. [Para 45][227-C-G]

3. It has been brought to the notice that not only the petitioners/intervenors before this Court, but there are large number of candidates who appeared in the various examinations in the year 2020 during Covid 19 pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other and this Court can take a judicial notice that these petitioners have appeared in the same pattern of examination in the previous years since the year 2015 and what is being claimed and prayed for under the guise of Covid 19 pandemic is nothing but a lame excuse in taking additional attempt to participate in the CSE 2021 to be held in future and there is no substance in either of the submissions made. [Para 46][227-GH; 228-A-B]

4. 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 this Court is dissuaded to exercise plenary powers under Art. 142 of the Constitution. However, it is made 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 47, 48][228-B-D]