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TMI Blog2008 (7) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... tains a specified age on the day next before the anniversary of his birthday. The applicant in pursuance of an advertisement published on 3-9-2007 in the leading newspaper wherein the application duly completed in all respects has been directed to reach within 45 days of the date of publication of the notice, applied for the post. 3. As per Rule 3 of the CESTAT (Recruitment and Condition of Service) Rules, 1987, a person is qualified for appointment only if he attains the age of 45 years. However, there is no specified date for completion of the age but under Rule 18 of the Rules or other condition of service wherein no provision is made under the rules conditions as applicable to other employees of the Government on corresponding status has been mutatis mutandis applied. The advertisement unlike the previous advertisement issued in 2006 sets out cut off date for eligibility as 1-1-2007. Being aggrieved, another candidate, namely, Shri Vijay Gupta filed OA 1897/2007 before the Principal Bench of the Central Administrative Tribunal therein on the basis of a statement made by the respondents counsel to consider not only the claim of the applicant but also similarly circumstanced, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r adjudicated upon. The act of respondents by wrongly fixing the cut off date as 17-10-2007 without computing 45 days excluding the date 3-9-2007 for determining the age of the applicant, are bound by the principle of promissory estoppel. 7. During the course of the hearing, learned counsel of the applicant has relied upon the decision of Andhra Pradesh High Court in V.S. Mehta Ors. v. State of A.P., AIR 1970 AP 234 to contend that once the General Clauses Act under Section 9 for an act or regulation on used word from prescribes exclusion of the date of publication, the same should bind the respondents and the principle should be followed. 8. While relying upon the decision in Saketh India Ltd. Ors. v. India Securities Ltd., 1999 (3) SCC 1, it is contended that a similar interpretation has been made by the Apex Court, which as a precedent is binding even on administrative authorities. 9. On the other hand, respondents counsel, at the outset, states that recruitment section of the Union Public Service Commission when consulted by the Ministry of Finance as to determination of eligibility criteria and its significance in the context of last date of receipt of application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty criteria. Accordingly, the notification for advertising the post is as an object to apprise the concerned on publication to have notice and knowledge of the public employment and thereafter to apply for it. Accordingly, a notification on supplementing the rules is a piece of methodology adopted for the recruitment. Moreover, when the Condition of Service Rules statutorily framed have been referred to in the advertisement, the same partakes the character of being part and parcel of the statutory rules. 15. The decisions rendered by the Apex Court being the highest judicial fora are binding on all subordinate courts under the Constitution of India, as ruled by the Apex Court in Central Board of Dawoodi Bohra Community Anr. v. State of Maharashtra Anr., 2005 SCC (L S) 246 by the Constitution Bench. However, what is binding in the decision of the Apex Court on the subordinate courts is also binding on the administrative authorities in their actions to give effect to appointment governed under the Constitution of India, being an entry to the civil post. However, what is binding is the ratio decidendi. Apex Court in Govt. of Karnataka Ors. v. Smt. Gowramma Ors., 2007 (14) SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is binding on all courts. All authorities in the territory of India are required to act in aid of it. Any interpretation of a law or a judgment, by this Court, is a law declared by this Court. The wider the power, more onerous is the responsibility to ensure that nothing is stated or directed in excess of what is required or relevant for the case, and to ensure that the Court s orders and decisions do not create any doubt or confusion in regard to a legal position in the minds of any authority or citizen, and also to ensure that they do not conflict with any other decision or existing law. Be that as it may. 18. In the light of above, the Apex Court while interpreting computation of period in a case where under the Representation of the People Act, Section 81 on presentation of petition when lays down presentation by an elector within 45 days from a particular date. While relying upon the Section 9 of the General Clauses Act, 1897, which provides for commencement and termination of time in any Central Act or Regulation, if the words from and to are used, the first day is to be excluded and last date is to be included. In the context of above, in Tarun Prasad Chatterjee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude the first and include the last day. 11. In Halsbury Laws of England, 37th Edition, Volume 3, page 92, it is stated as follows :- Days included or excluded - When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as from such a day or until such a day are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day. 12. Section 9 says that in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lauses under Section 9 having been expressed the day of publication of the notification i.e. 3-9-2007 has to be excluded and as such, the limitation of 45 days when expired on 18-10-2007, the applicant, by virtue of his date of birthday, has completed 45 years in age on 8-10-2007 and being the last date of application, he certainly fulfilled the eligibility criteria and has a legal, indefeasible right to be considered in the selection for the post of Judicial Member, CESTAT. 21. The contention put forth by the respondents is that when similarly circumstanced have been considered on uniform basis by treating cut off date of 45 days as 17-10-2007 and a direction to this effect when issued in OA 1897/2007 binds the applicant is misconceived. A consent order passed in Vijay Gupta s case shall not bind the applicant, who was not a party to OA 1897/2007, the decision would not bind him. However, the fact that cut off date per se cannot be said to be arbitrary, as ruled by the Apex Court in State of T.N. v. Seshachalam, 2008 (1) SCC (L S) 475 and the fact that the cut off date as per the eligibility as specified in the advertisement for the year 2007 though with some discrepancy from ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations put forth by the respondents is that Union Public Service Commission being the largest recruiting agency once has given a finding that the date of publication has to be inclusive for computing the period for eligibility. First of all, a field which is occupied by a judicial dicta, even the administrative authorities are bound by it and any decision, which is in conflict or infiltrates into the arena, which is occupied by the judicial dicta, the aforesaid decision or instructions would have not legal sanctity, as ruled by the Apex Court in Anil Ratan Sarkar v. State of West Bengal, 2001 (5) SCC 327. Further held by the CAT in Unreserved Employees Association v. Union of India, 2005 (1) ATJ that the judicial order cannot be overturned by the administrative order. In the above view of the matter, when we find that the Apex Court, as ratio decidendi though in different facts and circumstances when applied, a principle of computation of any limitation period excluding the first day, the same shall mutatis mutandis apply to any administrative order and in the instant case, the advertisement issued by the respondents shall also be interpreted in such a manner not to be in conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bar, the Division Bench held that even though the candidates, whose names appeared in the select list, were not made parties to the writ petitions, the writ petitions could not be summarily dismissed on the said ground. We are inclined to agree with this finding of the Division Bench, which is supported by the authority of the Constitution Bench in Shankarsan Dash v. Union of India (supra) and several other judgments of this Court. 26. Having regard to the above, the Apex Court in Director S.C.T.I. Medical Science Technology ANR. v. M. Pushkaran, 2007 (13) SCALE 424 where it is ruled that a person in the select list has not right for appointment. 27. As we find that the advertisement issued for the post of Judicial Member, CESTAT was on anticipated and unanticipated posts, the person, who has been selected, if his right to defend in the context of principles of natural justice is viewed, the very fact that an eligible person has not been allowed to participate in the selection process whereas a statutory provision has not been adhered to compute the period of 45 days. The aforesaid person would have no valid defense as to the aforesaid issue, which has been vehementl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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