D.N. Patel, J. (Oral) - When the matter is called out, counsel for the appellants is absent. Counsel for the respondents State is present.

2. Having heard counsel for the respondents State and looking to the facts and circumstances of the case, it appears that these appellants are the original petitioners, who had preferred writ petition being W.P.(S) No. 115 of 2007, which was disposed of by the learned Single Judge vide order dated 14th December, 2009 and the termination of the services of these appellants (original petitioners) were held as a valid one.

3. Looking to the facts of the present case, it appears that an advertisement was given by the State of Jharkhand through Jharkhand Public Service Commission, inviting applications for the post of Trained Teachers on 29th August, 2002, as submitted by the counsel for the respondents State. It appears that these appellants (original petitioners) applied for the same post and they are claiming the reservation in the Scheduled Caste Category.

4. Ultimately, they got appointment initially on temporary basis till the documents are being verified on the post of Trained Teachers.

5. It further appears from the facts of the case that later on upon the scrutiny of the documents, it was found out that the certificate of the Scheduled Caste were issued by another State and not by the State of Jharkhand.

6. Looking to Article 341 wherever any candidate wants to take any benefit of a reservation in the category of the Scheduled Caste, he must be a Scheduled Caste of the particular State, in which the candidate is seeking a public employment. In the facts of the present case, these appellants (original petitioners) are seeking employment on the public post in the State of Jharkhand whereas, the certificates of Scheduled Caste were presented of the State of Bihar. This is not permissible in the eye of law. For ready reference, Article 341 reads as under:

"341. Scheduled Castes. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

7. It has been held by Honble the Supreme Court in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another v. Union of India and Another reported in (1994) 5 SCC 244 especially in Paragraph Nos. 3 and 16 as under:

"3. On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition.

16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non-est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr. Jaipal Singh, Dr. Ambedkar answered as under:

"He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them...."

Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin"

(Emphasis Supplied).

In view of the aforesaid decision, the certificate of the Scheduled Caste given by another State is not permissible to get the benefit of reservation in Scheduled Caste category in the State of Jharkhand.

8. It further appears from the facts of the case that these appellants (original Petitioners) have served the State of Jharkhand for some period. Services by these appellants with the State of Jharkhand for some period cannot render their employment a legal one, especially when they were not belonging to Scheduled Caste in the State of Jharkhand and their certificate were never attached, which were given by the authority within the State of Jharkhand.

9. It may happen that the same caste may be Scheduled Caste in the State of Bihar as well as in the State of Jharkhand. Merely because the very same caste is a Scheduled Caste in the State of Bihar as well as in the State of Jharkhand that does not mean that if a candidate is seeking employment in the State of Jharkhand, he can produce the Caste Certificate of the State of Bihar. If anybody is seeking employment in "A" State then he has to produce the Caste Certificate given by the authorities of A State. Thus, no error has been committed by the learned Single Judge while dismissing the writ petition preferred by these appellants vide order dated 14th December, 2009 being W.P.(S) No. 115 of 2007.

10. The learned Single Judge in Para No. 5 of the impugned order, quoted a decision rendered by the Division Bench of this Court in W.P.(S) No. 578 of 2004 dated 1st April, 2006, we are in full agreement with the reasons given by the Division Bench of this Court in W.P.(S) No. 578 of 2004 dated 1st April, 2006.

11. It ought to be kept in mind that the declaration of the Scheduled Castes as per Article 341 is a prerogative power of the respective State and hence, a Scheduled Caste candidate of another State, cannot take benefit in the State of Jharkhand for the reservation in the Scheduled Caste category unless such caste is also declared as a Scheduled Caste in the State of Jharkhand. Whenever any candidate is applying for any public post and is claiming a reservation in the Scheduled Caste category, he ought to apply with a Scheduled Caste certificate issued by the authorities within the State of Jharkhand on or before the date on which the applications were to be submitted to the Jharkhand State Public Service Commission. Any certificate obtained later on even from the authorities within the State of Jharkhand cannot be accepted by the State because such certificates have been produced after the cutoff date. The cutoff date given in the application cannot be extended by this Court. Whenever, there is any cutoff date prescribed by the Public Service Commission, there are bound to be few persons who will fall on the wrong side of the cutoff date, but, that does not mean that such cutoff date is invalid nor this Court can extend such cutoff date.

12. In the facts of the present case, these appellants (original petitioners) have never produced Scheduled Caste certificates issued by the State of Jharkhand authorities on or before the cutoff date prescribed in the public advertisement. They presented the certificate of the Scheduled Castes issued by the State of Jharkhand authorities after several years. This is also not permissible in the eye of law. Cutoff date cannot be extended by this Court.

(i) It has been held by Honble the Supreme Court in the case of Union of India & Another v. M/s. Parameswaran Match Works & others, reported in (1975) 1 SCC 305 , especially in paragraph no. 10 as under:

"10. The concessional rate of duty can be availed of only by those who satisfy the conditions which have been laid down under the notification. The respondent was not a manufacturer before September 4, 1967 as it had applied for licence only on September 5, 1967 and it could not have made a declaration before September 4, 1967 that its total clearance for the financial year 196768 is not estimated to exceed 75 million matches. In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion. It need not give exemption or concession to everyone in order that it may grant the same to some. As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. That a classification can be founded on a particular date and yet be reasonable, has been held by this Court in several decisions (see Hatisingh Mfg. Co. Ltd. v. Union of India, Dr Mohammad Saheb Mahboob Medico v. Deputy Custodian General, Bhikuse Yamasa Kshatriya (P) Ltd. v. Union of India and Daruka & Co. v. Union of India. 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 it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the Legislature or its delegate must be accepted unless we can say that it is very wide off the reasonable mark See Louisville Gas Co. v. Alabama Power Co. per Justice Holmes."

(Emphasis Supplied)

(ii) It has held by the Honble Supreme Court in the case of State of Bihar and Others v. Ramjee Prasad and Others, reported in (1990) 3 SCC 368 especially in paragraph no. 8, as under:

"8. In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. Following the past practice the State Government fixed the last date for receipt of applications as January 31, 1988. Those who had completed the required experience of three years by that date were, therefore, eligible to apply for the posts in question. The respondents and some of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution. It is obvious that in fixing the last date as January 31, 1988 the State Government had only followed the past practice and if the High Courts attention had been invited to this fact it would perhaps have refused to interfere since its interference is based on the erroneous belief that the past practice was to fix June 30 of the relevant year as the last date for receipt of applications. Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date. As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice of the date for advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of anyone that experienced candidates were not available in sufficient numbers on the cutoff date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. We are, therefore, of the opinion that the High Court was clearly in error in striking down the governments action of fixing the last date for receipt of applications as January 31, 1988 as arbitrary."

(Emphasis supplied)

(iii) It has been held by the Honble Supreme Court in the case of University Grants Commission v. Sadhana Chaudhary & ors., reported in (1996) 10 SCC 536 especially in paragraph no. 21, as under:

"21. We find considerable force in the aforesaid submissions of Shri Banerjee. 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 it is seen that a line or a point there must be 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 can be said that it is very wide off the reasonable mark. (See: Union of India v. Parameswaran Match Works at p. 579 and Sushma Sharma (Dr) v. State of Rajasthan at p. 269.) In the present case, the date, 31.12.1993, as fixed by notification dated 21.6.1995, in the matter of grant of exemption from the eligibility test for appointment on the post of lecturer has a reasonable basis keeping in view the time taken in submitting the Ph.D. thesis or obtaining M. Phil. degree by candidates who had undertaken the study for Ph.D. or M. Phil. degree prior to the issuance of the 1991 Regulations and the date, 31.12.1993, cannot be held to be capricious or whimsical or wide off the reasonable mark. The High Court of Punjab and Haryana has proceeded on the basis that the cutoff date for the purpose of granting exemption from eligibility test should have nexus with the date of the advertisement inviting applications for appointment on the post of Lecturers. The High Court was in error in taking this view.

.......................................................................................................

......................................................................................................."

(Emphasis supplied)

(iv) It has been held by the Honble Supreme Court in the case of Dr. Ami Lal Bhat v. State of Rajasthan & ors. reported in (1997) 6 SCC 614 especially in paragraph nos. 5, 7, 11 and 17, as under:

"5. This contention, in our view, is not sustainable. In the first place the fixing of a cutoff date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cutoff date for determining the maximum or minimum age required for a post, is in the discretion of the rule making authority or the employer as the case may be. One must accept that such a cutoff date cannot be fixed with any mathematical precision and in 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 cutoff date and some persons who will fall on the wrong side of the cutoff date. That cannot make the cutoff date, per se, arbitrary unless the cutoff date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. Parameswaran Match Works and has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B. Sarat Chandra the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cutoff date was challenged. This Court considered the various steps required in the process of selection and said,

"when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications".

This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut off date should be with reference to a fixed date. Therefore, fixing an independent cutoff date, far from being arbitrary, makes for certainty in determining the maximum age.

7. In the present case, the cutoff date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All Service Rules are uniform on this point. Looking to the various dates on which different departments and different heads of administration may issue their advertisements for recruitment, a uniform cutoff date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for certainty. Such a uniform date prescribed under all Service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as grossly unreasonable or arbitrary. The time gap between the advertisement and the cutoff date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cutoff date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cutoff date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cutoff date. But there is no basis for urging that this is the only reasonable cutoff date. Even such a date is liable to question in given circumstances. In the first place, making a cutoff date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, making it dependent on the date when each department issues an advertisement, and the date which each department concerned fixes as the last date for receiving applications. A person who may fall on the wrong side of such a cutoff date may well contend that the cutoff date is unfair, since the advertisement could have been issued earlier; or in the alternative that the cutoff date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cutoff date fixed and the manner in which it is fixed. That is why this Court has said in the case of Parameswaran Match Works and later cases that the cutoff date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cutoff date can be the last date for receiving applications, appears to be without any basis. In our view the cutoff date which is fixed in the present case with reference to the beginning of the calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prone to vagaries and is less uncertain.

11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age barred. We fail to see how the power of relaxation can be exercised in the manner contended.

17. In the premises the appeals of the candidates who have challenged the cutoff date under the relevant rules are dismissed while the appeals filed by the State of Rajasthan are allowed. The validity of the Rules concerned relating to the cutoff date being fixed with reference to 1st of January of the year following the application is upheld. There will be no order as to costs."

(Emphasis supplied)

13. In view of the aforesaid judgments even if these appellants (original petitioners) have produced the certificates of their Scheduled Caste from the authorities within the State of Jharkhand, but, they have missed the bus or boat. The time for such submission of documents has gone. After the cutoff date, no document can be presented. Much less, they can be appreciated by the State. Nothing will be looked into by the State now. Hence, no error has been committed by the State of Jharkhand in terminating the services of these appellants. This aspect of the matter has been properly appreciated by the learned Single Judge.

14. Nonetheless, these appellants have been rightly given the remuneration for the period for which they have worked with the Government. As these appellants have worked for sometime, they are entitled to some remuneration. There is vast difference between the remuneration and the salary. These appellants are in fact not entitled for any salary because salary can be given to the correctly and legally appointed employees, but, as they have worked for sometime, they are entitled for remuneration which may be equal to salary. The word salary cannot be attached with the illegal appointee.

15. It has been held by Honble the Supreme Court in the case of State of Orissa and Another v. Mamata Mohanty reported in (2011) 3 SCC 436 especially in paragraph nos. 35 and 36 as under:

"35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees Union v. Delhi Admn., State of Haryana v. Piara Singh, Excise Supdt. v. K.B.N. Visweshwara Rao, Arun Tewari v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Telecom District Manager v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State of M.P. v. Mohd. Abrahim.)

36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."

(Emphasis supplied)

In view of the aforesaid decision, those who are not appointed in accordance with the law, they are not even entitled for salary. Thus, the word salary can be attached only with the regularly and legally appointed candidates. Those who are illegally or irregularly appointed are not entitled to salary even. Nonetheless, as these appellants have worked, they may be entitled to the remuneration which may be equal to salary. This aspect of the matter has also been properly appreciated by the learned Single Judge while observing in the Judgment dated 14th December, 2009 in Para No. 11 that these appellants will be paid remuneration.

16. Thus, except the aforesaid remuneration, nothing more can be paid to these appellants. The termination of the service is absolutely in consonance with the law and no error has been committed by the State in terminating the services of these appellants and no error has been committed by the learned Single Judge in deciding the writ petition being W.P.(S) No. 115 of 2007 by judgment and order dated 14th December, 2009.

17. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we see no reason to take any other view than what is taken by the learned Single Judge while deciding W.P.(S) No. 115 of 2007 vide judgment and order dated 14th December, 2009.

18. There is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.