LAW FOR ALL : Covid Effect = Civil Services (Preliminary) Examination = 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. = 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 Civil 38 Service Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us. 47. 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. 48. 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.

Thursday, March 4, 2021

Covid Effect = Civil Services (Preliminary) Examination = 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. = 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 Civil 38 Service Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us. 47. 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. 48. 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.

Covid Effect = Civil Services (Preliminary) Examination = 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. = 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 Civil 38 Service Examination 2021 to be held in future and we find no substance in either of the submissions which has been made before us. 47. 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. 48. 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO(s). 1410 OF 2020

RACHNA & ORS. …..PETITIONER(S)

VERSUS

UNION OF INDIA & ANR. ….RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Application(s) for intervention are allowed.

2. The batch of petitioners 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,

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.

3. The prayer which has been made in the instant petition is as

follows:

“(a) Issue a writ of mandamus or any other appropriate writ,

order or direction in the nature thereof and declare that the

action of the respondents of not issuing appropriate policy

for grant of an extra attempt to candidates for whom civil

services examination 2020 would be last attempt as being

violative of Articles 14, 19, 29 and 21 of the Constitution of

India, and by way of issuance of an appropriate writ, order

or direction of or in the nature of mandamus, and/or any

other writ, order or direction, interalia, direct the

Respondent/s to provide one extra attempt to the last

attempt candidates including the petitioners, in addition to

number of permissible attempts: and/or

(b) Pass any other order or direction as this Hon’ble Court

may deem fit and proper in the facts and circumstances of

the case and in the interest of justice.”

Brief Factual Matrix

4. The background facts delineated from the records and relevant

for the purpose are that the Civil Services Examination is

conducted every year by the 2nd respondent (Union Public Service

CommissionUPSC) and for the year 2020, the Ministry of

Personnel, Public Grievances and Pensions (Department of

Personnel and Training) published Gazette Notification dated 12th

February, 2020 notifying the rules for competitive examination,

2020(hereinafter being referred to as “Rules 2020”) to be held by the

nd respondent for the purpose of recruitment to 24 services/posts

to be held in three stages: (i) preliminary (ii) mains (iii) personality

test.

5. 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 number of

attempts and age have been provided under Rule 4 and Rule 6 of

the Rules 2020. Rule 4 and Rule 6 which are relevant for the

purpose are mentioned hereunder:

“4. Every candidate appearing at the examination who is

otherwise eligible, shall be permitted six attempts at the

examination.

Provided that this restriction on the number of

attempts will not apply in the case of Scheduled Castes and

Scheduled Tribes candidates who are otherwise eligible.

Provided further that the number of attempts

permissible to candidates belonging to Other Backward

Classes, who are otherwise eligible, shall be nine. The

relaxation will be available to the candidates who are

eligible to avail of reservation applicable to such candidates.

Provided further that candidates belonging to persons

with benchmark disability will get as many attempts as are

available to candidates other than persons with benchmark

disability of his or her community, subject to the condition

that a candidate of person with benchmark disability

belonging to the General and EWS Category shall be eligible

for nine attempts. Necessary action to make corresponding

changes in respective Rules/regulations pertaining to

various services is being taken separately. The relaxation

will be available to the candidate of persons with

benchmark disability who are eligible to avail of reservation

applicable to such candidates.

Note:

(I) An attempt at a Preliminary Examination shall be

deemed to be an attempt at the Civil Services Examination.

(II) If a candidate actually appears in any one paper in the

Preliminary Examination, he/she shall be deemed to have

made an attempt at the Examination.

(III) Notwithstanding the disqualification/cancellation of

candidature, the fact of appearance of the candidate at the

examination will count as an attempt.

6. (a) A candidate must have attained the age of 21 years

and must not have attained the age of 32 years on the 1st of

August, 2020 i.e., he must have been born not earlier than

nd August, 1988 and not later than 1st August, 1999.

Necessary action to make corresponding changes in

respective Rules/Regulations pertaining to various services

is being taken separately.

(b) The upper agelimit prescribed above will be relaxable:

(i) up to a maximum of five years if a candidate

belongs to a Scheduled Caste or a Scheduled

Tribe;

(ii) up to a maximum of three years in the case of

candidates belonging to Other Backward Classes

who are eligible to avail of reservation applicable

to such candidates;

(iii) up to a maximum of three years in the case of

Defence Services Personnel, disabled in operations

during hostilities with any foreign country or in a

distributed area and released as a consequence

thereof;

(iv) up to a maximum of five years in the case of

exservicemen including Commissioned Officers

and ECOs/SSCOs who have rendered at least five

years Military Service as on 1st August, 2020 and

have been released;

(a) on completion of assignment

(including those whose assignment is

due to be completed within one year

from 1st August, 2020 otherwise than by

way of dismissal or discharge on

account of misconduct or inefficiency; or

(b) on account of physical disability

attributable to Military Service; or

(v) up to a maximum of five years in the case of

ECOs/SSCOs who have completed an initial

period of assignment of five years of Military

Service as on 1st August, 2020 and whose

assignment has been extended beyond five years

and in whose case the Ministry of Defence issues

a certificate that they can apply for civil

employment and that they will be released on

three months’ notice on selection from the date of

receipt of offer of appointment.

(vi) up to a maximum of 10 years in the case of

Persons with Benchmark Disabilities viz. (a)

blindness and low vision; (b) deaf and hard of

hearing; (c) locomotor disability including cerebral

palsy, leprosy cured, dwarfism, acid attack victims

and muscular dystrophy; (d) autism, intellectual

disability, specific learning disability and mental

illness; (e) multiple disabilities from amongst

person under clauses (a) to (d) including deafblindness.

Note I : Candidates belonging to the Scheduled

Castes and the Scheduled Tribes and the Other

Backward Classes who are also covered under any

other clauses of Rule 6(b) above, viz. those coming

under the category of Exservicemen, Persons with

Benchmark Disabilities [viz. (a) blindness and low

vision; (b) deaf and hard of hearing; (c) locomotor

disability including cerebral palsy, leprosy cured,

dwarfism, acid attack victims and muscular

dystrophy; (d) autism, intellectual disability,

specific learning disability and mental illness; (e)

multiple disabilities from amongst person under

clauses (a) to (d) including deafblindness.] will be

eligible for grant of cumulative agerelaxation

under both the categories.

Note II : The details of Functional Classification

(FC) and Physical Requirements (PR) of each

service are indicated in Appendix IV of these Rules

which are identified and prescribed by the

respective Cadre Controlling Authorities (CCAs)

as per the provisions of Section 33 and 34 of the

Rights of Persons with Disabilities Act, 2016. Only

those category(ies) of disability(ies) mentioned in

Appendix IV shall apply for the examination under

Persons with Benchmark Disability (PwBD)

category. Therefore, the candidates belonging to

the Persons with Benchmark Disability categories

are advised to read it carefully before applying for

the examination.

Note III: The term Exservicemen will apply to the

persons who are defined as Exservicemen in the

Exservicemen (Reemployment in Civil Services

and Posts) Rules, 1979, as amended from time to

time.

Note IV: The age concession under Rule 6(b)(iv)

and (v) will be admissible to Exservicemen i.e. a

person who has served in any rank whether as

combatant or noncombatant in the Regular

Army, Navy and Air Force of the Indian Union and

who either has been retired or relieved or

discharged from such service whether at his own

request or being relieved by the employer after

earning his or her pension.

Note V: Notwithstanding the provision of agerelaxation under Rule 6(b)(vi) above, Candidates of

Persons with Benchmark Disability will be

considered to be eligible for appointment only if

he/she (after such physical examination as the

Government or appointment authority, as the case

may be, may prescribe) is found to satisfy the

requirements of physical and medical standards

for the concerned Services/Posts to be allocated to

the Candidates of Persons with Benchmark

Disability by the Government.

Save as provided above, the agelimits

prescribed can in no case be relaxed.

….”

6. It may be relevant to note that for 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

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 relaxable to

the categories of vertical/horizontal reservations and there is no

such enabling provision granting relaxation in the upper age limit to

the candidates belonging to general category as such those

candidates of 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”).

7. Pursuant to the notification dated 12th February, 2020

published in the Official Gazette by the 1st respondent, process of

selection was initiated by the Commission inviting applications from

the eligible candidates who wish to appear in the Examination

2020. According to the notice published by the Commission,

preliminary examination was to be held on 31st May 2020.

Appendix IIB annexed thereto deals with the procedure for

withdrawal of application after submission of online application, it

could be withdrawn from 12th March, 2020 to 18th March, 2020.

Thereafter the admit cards were issued to all the candidates who

intended to participate in the selection process, but because of the

unprecedented Covid19 pandemic, which was notified by the

National Disaster Management Authority vide its order dated 24th

March 2020, the Commission by its Press Release dated 4th May,

2020 deferred the Examination 2020 and further informed that the

revised schedule of examination will be notified at a later stage.

8. 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. This Court can take judicial notice of the fact that after a

second opportunity was afforded to the candidates for withdrawal of

the application, only such of the candidates were left who had made

up their mind and were mentally prepared to appear in the ensuing

preliminary examination which was scheduled to be held on 4th

October, 2020.

9. As alleged that when no decision was taken by the respondent

on their representations/objections for deferring of the examination,

certain candidates filed Writ Petition (Civil) No.1012 of 2020 before

this Court on 5th September, 2020 seeking postponement of the

Examination 2020 and the prayer for relaxation in upper age limit

and an additional attempt. This Court was not persuaded to issue

a direction to the Commission to defer the schedule of examination

to be held on 4th October, 2020 on the submissions made by the

writ petitioners who approached this Court. Moreover, on one of

the issues, this Court expressed a sanguine hope that possibility of

providing one more attempt to such candidates with corresponding

extension of age limit, if possible, can be explored by the concerned

authorities. The submission made to merge the two examinations,

namely, to be conducted on 4th October, 2020 with the examination

scheduled for 2021, however, did not find favour by this Court.

10. The relevant part of the order dated 30th September, 2020 is

extracted as under:

“(iv) The fourth point raised before us is that some of the

candidates may be giving last attempt and also likely to

become agebarred for the next examination, and if such

candidates are unable to appear in the examination due to

Covid19 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.”

11. The fact is that all the writ petitioners/intervenors appeared in

the preliminary examination held on 4th October, 2020 which was

conducted in 74 cities. During the course of arguments, following

information was brought to the notice of this Court:

Number of candidates who enrolled for the Examination

2020 10,56,835.

Number of candidates who appeared on 4th October, 2020

4,86,952.

Number of last attempt candidates who appeared for

Examination 2020 and have not attained age bar for 2021

3863

Number of last attempt candidates who appeared in

Examination 2020 and would reach age bar for CSE 2021

2236

Candidates having last attempt in terms of age bar but did

not appear 4237

Combined effect of last attempt appeared : 3863 + 2236 =

6099 which comes to around 1.25% of candidates who

appeared for the examination.

Combined effect of candidates who appeared and nonappeared and who require relaxation for 2021, i.e. total =

3863+2236+4237 = 10,336 which comes to 0.97% of total

candidates who enrolled for Examination, 2020.

12. 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 fulfil 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 agebarred 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 agebarred from appearing

in CSE 2021. The extract of the decision which was placed on

record dated 5th February, 2021 is reproduced hereunder:

“As per the suggestion of this Hon’ble Court, the Union

of India is agreeable for the following exgratia, onetime,

restricted relaxation to be granted to the prospective

candidates, subject to the same being part of a consent

order, disposing off the petition. The conditions, agreeable

to the Respondent, are as under:

1. Relaxation, only to the extent of providing one

extra attempt for Civil Service Examination (CSE),

specifically limited to CSE2021, may be granted

to only those candidates who appeared for CSE2020 as their last permissible attempt and are

otherwise not agebarred from appearing in CSE2021.

2. No relaxation shall be granted for CSE2021 to

those candidates who have not exhausted their

permissible number of attempts or to those

candidates who are otherwise agebarred from

appearing in CSE2021 as per the prescribed age

limits of different categories, or to any other

candidate for any other reason whatsoever.

3. This relaxation for the candidates and to the

extent as prescribed above, shall be a onetime

relaxation only and shall apply only for appearing

in CSE2021 and shall not be treated as a

precedent.

4. The relaxation provided at Point 1, shall not

create any vested right whatsoever or any other

purported right on ground of parity or otherwise,

in favour of any other set/class of candidates at

any time in the future.”

Submissions of the parties

13. The main thrust of submission of learned counsel for the

petitioners is that the sudden and strict lockdown due to

unprecedented pandemic in March, 2020 had made a large

disruption in the life of the common man and the measures adopted

led to difficulties and impediments in the preparation of the

Examination 2020 for many aspirants and the Government failed to

take any policy decision for the last attemptees before holding

Examination 2020 to enable them to take an appropriate/suitable

decision and noticing precedence from the earlier policy of 1st

respondent to grant an extra attempt to lastattemptees in the event

causing widespread hardships left with no choice except to appear

in the examination even though they did not have an adequate

opportunity and infrastructure and they were left out blinded with

uncertainty.

14. Learned counsel for the petitioners submits 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 to the nature of their services and in

the light of invocation of The Essential Services Maintenance Act,

1968 and The Disaster Management Act, 2005. There is no benefit

accruing to persons in essential services and public employment,

consequent to the unlock guidelines.

15. Learned counsel further submits that denial of an additional

attempt to the petitioners will make them to suffer serious

discrimination amongst who have not faced such hurdles as being

faced by the petitioners in their preparation during the

unprecedented pandemic. While others had a choice of leaving the

Examination 2020, while taking care of their health, the last

attemptees particularly in terms of age, were left with no choice and

had to sit for the exam despite the lack of opportunity to prepare

which is in violation of Articles 14 and 21 of the Constitution of

India.

16. Learned counsel further submits that the petitioners were

deprived of their basic facilities for preparation in view of the

innumerable, inevitable circumstances suffered by them due to

Covid19 pandemic, which prevailed in the entire country during

the crucial period of their preparation and even on the date of

examination, but the impact may not be uniform on all the

participants and at least to those who are essential service

providers and such candidates deserve one more attempt when they

virtually lost for unavoidable circumstances their last attempt in

2020 and there are past precedents to grant of extra attempt in

addition to age relaxation for such years when UPSC Civil Services

Examinations’ aspirants faced hardships due to various reasons.

17. Learned counsel for the intervenors in addition further

submitted that the discretion exercised by the 1st respondent dated

th 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 agebarred 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

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.

18. Learned counsel for intervenors further submits that the

candidates who appeared in Examination 2020 by and large are

affected because of unprecedented pandemic and they were unable

to prepare themselves to appear in the examination due to various

impediments which came in front of them of which adequate

reasons have been furnished to this Court. 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. All

hopes of the candidates remain in the last attempt but that had

gone in vain because of the unprecedented situation which came in

front of them and that was the only reason for which they have not

been able to put their full potential to qualify the Examination

2020.

19. Per contra, counter affidavits have been filed by the

respondents in their defence and it has been stated that the

syllabus for the preliminary examination has not been changed

since 2015 and examination of this nature is not possible for a

candidate to prepare at the last moment and it needs a lot of

planning, spanning of a number of going through this preparation.

Entry age of candidates is 21 years and exit age for general

candidates is 32 years. Relaxations/upper age limits are available

to candidates who appear in certain categories of vertical/horizontal

reservations. Hence, for general candidates there is a time of 11

years if they would be able to start preparing at the age of 21. After

the process was initiated pursuant to Rules 2020, as per the

scheme, the examination was scheduled for 31st May, 2020. There

was a clear time of three and a half months and by the time

candidate appeared in their last attempt, they would have a lot of

experience so it could easily be inferred that they have consumed

sufficient time to prepare for the preliminary examination as no

change in the syllabus has been given effect to after the year 2015

but taking note of the unprecedented situation of Covid19

pandemic, the policy decision was taken by the Commission to

defer the examination and on 5th June 2020, it was declared that

the examination is to be scheduled on 4th October, 2020. Therefore,

instead of three months which is the requirement under the scheme

of rules, candidates got almost five additional months (i.e. eight

months) to prepare for the Examination 2020 and to compensate

the hardships caused by Covid19 pandemic, different modalities

were adopted by the respondent. So far as the demand made by the

petitioners for extra attempt or extra year is concerned, it has been

specifically stated that giving of an extra attempt or the year would

result in hardships being caused to the candidates who are

appearing for the CSE 2021 and that apart an additional attempt

has been demanded by the petitioners who are the last attempters

or who have crossed the age bar.

20. According to the learned counsel, that would result in

discrimination for the reason that all attemptees irrespective of the

nature of attempt (i.e., 1st, 2nd etc.) must have suffered during this

Covid19 pandemic and hence the consideration of giving an

additional attempt to only last attemptees would be discriminatory.

At the same time, such of the successful candidates can also

complain but for Covid19, their rankings in the list of successful

candidates would have been much higher, therefore, they should

also be given an additional chance. Similar reasoning would apply

as far as the upper age is concerned and so far as the submissions

made by learned counsel for the petitioners are concerned, these

are without prejudice to the main contention that they are not

entitled for relaxation as prayed for.

21. It has been further stated that the first national lockdown

came into force on 25th March, 2020, i.e., after one and a half

month of the notice of examination published on 12th February

2020. From 1st June, 2020, gradual unlocking of the lockdown had

started on monthly basis and the preliminary examination was held

on 4th October, 2020 when the unlock guidelines 5.0 were in force.

To meet out the bone of contention of the petitioners that there are

precedents for granting relaxation on earlier occasions is concerned,

it has been stated that these are the policy decisions taken by the

executive in a particular facts and circumstances and the present

decision has to be tested independently in the given circumstances,

which has no relativity or comparison.

22. It has also been stated that the candidates who had appeared

in the examination had accepted the rules of the Examination 2020

and now having appeared and failed, they cannot be permitted to

approbate and reprobate in the same breath after they had failed in

the Examination 2020. The submission may not hold good for the

reason that their prayer is to grant additional attempt to appear in

CSE 2021 and the petitioners have not questioned the procedure of

selection held of Preliminary Examination 2020, deserves rejection.

23. The 2nd respondent (UPSC) has also filed its counter affidavit

and it has been stated that due to prevailing conditions in the

country in the year 2020 on account of Covid19 pandemic, several

decisions were taken by the Commission to reschedule the

examinations as a matter of fact, no examination was held during

the period of lockdown. The resumption of examinations started

with the NDA & NA Examination (I) & (II) on 6th September, 2020

and apart from Examination 2020, following are the examinations

and recruitment tests held by the Commission during the period 6th

September, 2020 to 20th December, 2020:

Sl.

No.

Name of

Examination

Date of

Examination

Number of

candidates

applied

Number of

candidates

appeared

1 NDA/NA Exam

(I) & (II)

06.09.2020 530185 240445

2 Civil Services

(Pre) Exam

04.10.2020 1040060 482770

3 Indian Economic

Service

1618 Oct,

2020

10458 1461

4 Indian

Statistical

Service Exam

1618 Oct,

2020

12090 1753

5 Combined

Geoscientist

(Main) Exam

1718 Oct,

2020

720 619

6 Engineering

Services (Main)

Exam

10.10.2020 2263 1955

7 Combined

Medical Services

Exam

22.10.2020 43120 20213

8 Combined

Defence Services

ExamII

08.11.2020 234343 118250

9 Central Armed

Police Forces

Exam

20.12.2020 296066 89946

10 CBRTs 20.12.2020 26988 14250

Total 2196293 971662

24. Learned counsel for the Commission submits that although

the decision has to be taken by the 1st respondent in meeting out

the prayer made by the writ petitioners but so far as the 2nd

respondent (UPSC) is concerned, all effective measures were

adopted in holding the examinations/recruitment tests of various

Central Services during the said period and indulgence which has

been prayed for by the petitioners appeared in Examination 2020,

in the given circumstances, of which the details have been

furnished need no further indulgence by this Court.

Analysis

25. We have heard Mr. Shyam Divan, learned senior counsel

appearing for the petitioners; Mr. S.V. Raju, learned Additional

Solicitor General and Mr. Naresh Kaushik, learned counsel

appearing for the respondents; Mr. P.V. Narasimha and Mr. Pallav

Shishodia, learned senior counsel appearing for the intervenors and

with their assistance perused the material available on record.

“The question that emerges for our consideration

is that whether the petitioners/intervenors and

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”.

26. There is no doubt that for India or for rest of the world, Covid19 has been a disaster of unprecedented proportions. The crisis of

Covid19 pandemic 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. Disasters are testing times for

the institutions and individuals, processes and procedures, and

policies and their implementation mechanisms. We can take

judicial notice that when Covid19 struck India, the country already

had in place legal and administrative instruments to empower and

enable the State to contain and manage the several crisis that

would arise from the pandemic. Two of the most legal instruments

are the Distaster Management Act, 2005 and the Epidemic Diseases

Act, 1897 amended in the year 2020.

27. The World Health Organization(WHO) has declared it as a

global pandemic. Not only that but because of its rampant spread,

countries were forced to stop international traveling as well as

locked up themselves. Also, the lockdown has been recognised at

the given point of time as the only method to control the spread of

the pandemic and almost every country has adopted this method.

28. On 25th March, 2020, the Disaster Management Act 2005(DM

Act) was invoked in India for the first time since it was passed

almost a month and a half ago, to tackle the Covid19 pandemic

that was then in its initial stages of spreading. The National

Disaster Management Authority(NDMA) which was created by the

Ministry of Home Affairs(MHA) in pursuance of the Disaster

Management Act 2005, issued a notification dated 24th March,

2020 under Section 6(2)(i) of the DM Act. The order directed the

ministries and departments of Government of India and State

Governments along with State Disaster Management Authorities to

take measures for “ensuring social distancing so as to prevent the

spread of Covid19 in the country”.

29. In the early phases of this spread of Covid19 pandemic, the

response attempted to control the ingress of the virus in our

country through border control, screening of persons entering the

country, followup surveillance and contract tracing. This was

followed by series of countrywide lockdown measures: Lockdown 1

(25th March, 2020 to 15th April, 2020), Lockdown 2(16th April, 2020

to 3rd May, 2020) and Lockdown 3 and 4 (4th May, 2020 to 17th May,

2020 and then through May 31st). Instituted and publicized by the

Central Government under the Disaster Management Act 2005,

these lockdowns varied in scope and nature, depending on the

situation on the ground.

30. Despite that Covid19 pandemic has affected the livelihood of

the common man at all levels, be it a level of education system,

from preschool to tertiary education. Different countries

introduced various policies in meeting out the widespread socioeconomic implications but 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.

31. While reverting to the facts of the instant case of the

petitioners, what is prayed by them in the first blush appears to be

attractive but it lacks legal strength and foundation for various

reasons.

32. The scheme of Rules 2020 of which a detailed reference has

been made and Rules 4 & 6 in particular, clearly stipulate that the

entry age to participate in this competition is 21 years and the exit

age for general candidates is 32 years and at least each candidate

gets minimum 11 years to participate in the competitive

examination, i.e., CSE, in the instant case. For those who claim

reservation vertical/ horizontal, they have numerous/unlimited

chances and are also entitled for age relaxations. Thus, the scheme

takes note in providing adequate opportunities to the candidates to

participate in this competitive examination at all levels. It may

further be noticed that under Rule 6 of Rules 2020, there is a clear

mandate that age limit prescribed in no case can be relaxed subject

to the relaxations which have been enumerated for various

categories. 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.

33. The syllabus of the preliminary examination has not changed

since 2015 and after the Rules 2020 were notified by the 1st

respondent for Civil Services Exam 2020, the notice, in the first

instance, was published on 12th February 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 4th

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.

34. 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

Covid19 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 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.

35. This court cannot lose sight of the fact that apart from the

present Examination 2020, it has been brought to the notice of this

Court that 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 Covid19 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.

36. So far as the instant case is concerned, 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.

37. Taking note of the order of this Court dated 30th September,

2020 passed in Writ Petition(Civil) 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 has 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.

After the proposal was placed on record, even the

petitioners/intervenors inter se made their submission to the Court

that the proposal which has been placed by the 1st respondent for

consideration of this Court according to them is discriminatory and

is in violation of Article 14 of the Constitution.

38. We do find substance in what being urged by learned counsel

for the petitioners inter se in questioning the decision placed by 1st

respondent for our consideration. 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 Covid19 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.

39. We do find substance that 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 before

us apart from complaint made inter se by the

petitioners/intervenors themselves of being discriminatory in

character, 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 being

proposed by the 1st respondent in compliance of the order of this

Court dated 30th September, 2020.

40. The thrust of submission of learned counsel for the petitioners

was 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

Articles 14 and 21 of the Constitution.

41. The submission, in our view, 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.

42. Their further grievance 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 Civil Service Examination,

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 1st 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

Article 14 of the Constitution to take a call in meeting out the

difficulties which have been faced as alleged in the given

circumstance.

43. It is the settled principle of law that 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 and has been considered by this Court in Union of India

and Others Vs. M. Selvakumar and Another 2017(3) SCC 504.

The relevant portion is as under:

“47. There is one more reason due to which we are unable

to subscribe to the view taken by the Madras High Court

and Delhi High Court. The horizontal reservation and

relaxation for Physically Handicapped Category candidates

for Civil Services Examination, is a matter of Governmental

policy and the Government after considering the relevant

materials has extended relaxation and concessions to the

Physically Handicapped candidates belonging to the

Reserved Category as well as General Category. It is not in

the domain of the courts to embark upon an inquiry as to

whether a particular public policy is wise and acceptable or

whether better policy could be evolved. The Court can only

interfere if the policy framed is absolutely capricious and

noninformed by reasons, or totally arbitrary, offending the

basic requirement of Article 14 of the Constitution.”

(Emphasis supplied)

44. It was the case where the number of attempts granted to

physically handicapped persons were increased from 4 to 7 in the

UPSCCSE examination and the candidates belonging to the OBC

had moved this Court requesting for an increase of the number of

attempts from 7 to 10 that is an additional 3 attempts as it was

done in the case of the physically handicapped category but that

was repelled by this Court for the reasons indicated above.

45. 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 Civil Service Examination, 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.

46. It has been brought to our 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 Civil

Service Examination 2021 to be held in future and we find no

substance in either of the submissions which has been made before

us.

47. 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.

48. 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.

49. Consequently, the petition fails and is accordingly dismissed.

50. Pending application(s), if any, stand disposed of.

…………………………………….J.

(A.M. KHANWILKAR)

……………………………………J.

(INDU MALHOTRA)

…………………………………….J.

(AJAY RASTOGI)

NEW DELHI

FEBRUARY 24, 2021

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