The Supreme Court on Wednesday dismissed the petition seeking extra chance in UPSC civil service exams for the candidates who had exhausted their last attempt in October 2020.
The petitioners, who had given their last attempt in Civil Service Examination 2020, had sought for an extra chance citing difficulties created by COVID-19 pandemic and the national lockdown. The petitioners argued that the pandemic affected their preparation and sought for extra attempt.
Justice AM Rastogi, who read out the operative part of the judgment, appreciated the efforts of the Advocate on Record of the petitioner, Anushree Kapadia.
"You argued well. You were clear on facts", the judge told the lawyer.
The Centre had initially made an offer to give extra attempt, subject to the age-bar. However, the petitioners argued for age-relaxation as well. Thereafter, the bench decided to hear the case on merits.
The Court observed that the question before them was whether the Petitioners/Intervenors and other similarly placed candidates are entitled to another/additional chance for CSE 2021 on account of the unprecedented COVID-19 pandemic.
The Judgement states that while what is prayed by the Petitioners "in the first blush appears to be attractive but it lacks legal strength and foundation for various reasons".
Present Petitioners' complaint cannot be taken into isolation
The Judgement states that the State Commissions/recruiting agencies must have conducted their examinations/recruitment tests for various services and merely because the present Petitioners have made a complaint to the Court, their prayer cannot be taken into isolation and does not give them a legitimate right to claim additional attempt/benefit, which is otherwise not permissible under the scheme of Rules 2020.
Further, it has been observed that "…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 Civil Service Examination 2021 to be held in the future…".
"The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for the Central Services…, if this Court shows indulgence to few who had participated in the Examination 2020, it well set down a precedent and also have a cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution."
Solely providing relaxation to candidates who are not age-barred is discriminatory
The Judgement goes on to record that Rule 4 and Rule 6 of the Rules for Competitive Examination, 2020 prescribe the eligibility with regard to number of attempts and age respectively, with Rule 6 categorically stating that the age-limits prescribed can in no case be relaxed.
"So far as the candidates who appear in the general category and have crossed the age of 32 years, no discretion is left with the authority to grant any relaxation in upper age limit prescribed for the candidates appeared in the instant Examination 2020".
When the Centre decided to provide a one-time relaxation to candidates who were not age-barred, it had been opposed by the Petitioners on the ground that excluding those who were age-barred was discriminatory.
The Court has found in the submission of the Petitioners and noted that all attemptees, irrespective of the nature of attempts, must have faced the same consequences as a result of the pandemic and consequently, it would be advisable to avoid any concession that is not envisaged by the Rules.
"….we are also of the view that 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 is being proposed by the 1st respondent in compliance of the order of this Court dated 30th September, 2020".
No substance in submission of Petitioners that Respondent has exercised discretion in earlier selections
The Court observed that there was no substance in the submission of the Petitioners that the Respondent had exercised discretion as a matter of policy in earlier selections and that the Petitioners had a legitimate expectation that the Government would do the same in the instant matter in view of the unprecedented situation.
This was rejected "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".
Judicial review of policy decision and issuing mandamus to frame policy in a particular manner are absolutely different
The Court has held that while 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. Therefore, in the given situation, no assistance can be claimed by the Petitioners in seeking mandamus to the Centre to come out with a policy granting relaxation.
'Life has to move on in COVID'
The court also observed :
"..the Covid19 pandemic has left its footprints for us to learn from the unprecedented situation, which everyone has come across and suddenly changed the lifestyle of every individual in the society, his way of working, from social security to individual human rights, from macro economy to household income and has made us more stronger to face, if any difficult situation arises in future and this is what by experience we learn. There is an old saying "there is good in every evil". Still life has to move on in all situations, and this is what this country has faced, but resiliently fought back this unprecedented situation and the economy and life of the common man is on the path towards normalcy in a short period of time than expected"In light of the above, the Supreme Court has dismissed the writ petition.
The hardships due to COVID19 affected all candidates uniformly and if extra chance is given to last-attempt candidates, other candidates will also start demanding the same, leading to an "endless cycle", the ASG had added.
Senior Advocates Shyam Divan, CU Singh and PS Narasimha, appearing for the Petitioners, had submitted that not granting the relaxation in the age-bar was arbitrary and unreasonable.
Earlier, the Centre had agreed to give an extra chance to such last attempt candidates but with a condition that the concession will be subject to age-bar.
The Petitioners and the intervenors, while welcoming the offer of extra chance, opposed the Centre's decision to confine it only to candidates not hit by the age-bar.
On 5th February, the Centre informed the Supreme Court that the Centre and the Union Public Service Commission (UPSC) had agreed to grant a "one-time, restricted relaxation to prospective candidates" who had given their last attempt of the UPSC exam in October 2020, and were not age-barred.
On 25th January, the Department of Personnel and Training filed an Affidavit before the Supreme Court submitting that an extra chance would not be provided to candidates who had exhausted all their attempts at giving the UPSC examination. It was contended that provision of an extra chance would create a differential treatment.
This was in departure from the previous submission of the Central Government that the issue was under "active consideration" and that the government was not adopting an adversarial stance.
On 18th December, 2020, Solicitor-General Tushar Mehta, had submitted that the Centre was not taking an "adversarial stand" with respect to the plea for extra chance and that a decision in that regard was likely within three or four weeks. The rules might need amendment for granting extra chance, he added.
On September 30, the Supreme Court had directed the Central Government and the Union Public Service Commission to consider granting an extra chance to candidates who otherwise have their last attempt in 2020, with corresponding extension of the upper age-limit.
The Court directed the authorities to take a decision in that regard "expeditiously".
"The fourth point raised before us is that some of the candidates may be giving last attempt and also likely to become age-barred for the next examination, and if such candidates are unable to appear in the examination due to Covid-19 pandemic situation, it would cause great prejudice to them .In this regard, we have impressed upon Mr. S.V.Raju, learned Additional Solicitor General appearing for the Ministry of Home Affairs (MHA), Ministry of health and Family Welfare (MoHFW) and Department of Personnel and Training (DoPT) to explore the possibility of providing one more attempt to such candidates with corresponding extension of age limit. He has agreed to convey the sentiments of the Court to all concerned and to take a formal decision thereon expeditiously".
On October 26, the Department of Personnel and Training informed the Supreme Court that the issue regarding grant of extra attempt to last chance candidates was under the consideration of the authorities.
Based on that submission, a Bench led by Justice AM Khanwilkar disposed of another petition (Abhishek Anand Sinha v Union of India) observing that it was not appropriate for the Court to pass orders when the matter was under the consideration of the concerned authorities.
"The issue raised in this Writ Petition is under consideration of the appropriate authority and in light of the observations made by this Court in order dated 30.09.2020 in Writ Petition(C) No. 1012 of 2020, needful is being done in the matter. As a result, it may not be appropriate to precipitate the matter further. We leave it to the competent authorities to assuage the grievance of the Petitioners, as brought before this Court in the present Writ Petition appropriately", the Bench observed in the order.
The present petition had been filed as a sequel to the above proceedings seeking compensatory extra chance for civil service candidates.