IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 1667 of 2008
with W.P. (S) No. 1574 of 2008
with W.P. (S) No. 3354 of 2008
...
Prem Ranjan ... Petitioner [In W.P. (S) No.1667 of 2008]
Amit Kumar Mishra ... Petitioner [In W.P. (S). 1574 of 2008]
Swapan Kumar ... Petitioner [In W.P. (S) No. 3354 of 2008]
-V e r s u s-
The State of Jharkhand & Others ... Respondents [In all the cases].
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioners : - Mr. Manish Kumar, Advocate. [In W.P. (S) No. 1574 of 2008]
and [In W.P. (S) No. 3354 of 2008]
For the Petitioner : - M/s. Suresh Kumar
& Ranjeet Kumar, Advocates. [In W.P. (S) No. 1667 of 2008]
For the Respondent-State : - Mr. P. K. Prasad, Sr. Adv.-A.G.
& Mr. Pratyush Kumar, J.C. to A.G.[In all the cases]
...
C.A.V. On :- 27/01/2009 Delivered On: - 20/03/2009
...
6/ 20 .03 .2009 Petitioners in these writ applications, have commonly challenged
the Advertisement No. 01 of 2008 (Annexure-2), issued by the Respondent No. 5,
taking objection to the maximum age limit of 24 years fixed as one of the
eligibility criterias for recruitment of candidates to the post of the Sub-Inspectors
of the Police in the Jharkhand Police Service. The main questions raised for
determination are: -
(i) Whether the vacancies and the posts accumulated since
1999 of Sub-Inspector and the equivalent posts accumulated in the year
1999, have been included in the impugned advertisement which remained
vacant for a long time?
(ii) Whether by fixing the upper age limit as 24 years for the
General Category candidates as on 01.01.2008, candidates, who were
eligible for appointment on the post in question in the year 1999, can be
debarred from their appointment?
(iii) Whether the action of the Respondents in fixing the cut off
date as 01.01.2008 instead of 01.01.1999, is illegal, arbitrary and mala fide
and an act of discrimination?
(iv) Whether the action of the Respondents is violative of
Articles 14 and 16 of the Constitution of India, deserving interference by
this Court in the interests of justice?
2. The common contention of the petitioners in these writ applications is that the
last examination for selection to the post of Sub-Inspector when the process of
recruitment was taken up by the Respondents-State in the State's Police
Service was held in the year 1994. After the bifurcation of the erstwhile State
of Bihar when the State of Jharkhand came into existence with
[2] [W.P. (S) No. 1667 of 2008
with W.P.(S) Nos. 1574 and 3354 of 2008]
effect from 15.11.2000, the State of Jharkhand had not taken any initiative to fill
up the vacancies whatsoever to the post of Sub-Inspectors and equivalent posts.
The State of Jharkhand adopted the Bihar Police Manual with
certain amendments vide Memo No. 3300 dated 12.11.2001 and in one of the
modified clauses, the upper age limit for the General Category candidates in the
Police Service has been fixed from 19 years to 35 years.
Pursuant to the requisition of the State Government, the Jharkhand
Public Service Commission had issued a Notification No. 11 of 2007 by which
their Civil Services Examination was conducted by the J.P.S.C. for the
appointment in the Jharkhand Police Service and in the corresponding
advertisement issued by the J.P.S.C., the upper age limit has been fixed as 35
years for the General Category Candidates.
In spite of the above, the impugned advertisement has now fixed
the upper age limit for the General Category candidates as 24 years as on
01.01.2008
besides the other requisite eligibility criteria of being a Graduate from
any recognised university or the equivalent.
3. The grievance of the petitioners is that they had completed their
Graduation way back in the year 2002 and had thereby become eligible for
appointment to the post of Sub-Inspector but the State of Jharkhand did not
initiate any effort to fill up the vacant posts by recruitment since, 2002 and it is
only now in 2008 that the Respondent-State has taken the initiative but in doing
so, they have tried to discriminate the candidates by fixing the upper age limit at
24 years in the General Category, thereby debarring the petitioner and other
similar candidates, from the employment opportunity on account of their having
crossed the upper age limit.
4. Mr. Manish Kumar, learned counsel appearing for the petitioners
argues that the State of Jharkhand had adopted the Bihar Police Manual and
certain amendments were carried out vide Memo No. 3300 dated 12.11.2001 in
Rule 658 of the Manual. The modification carried out vide the amendment, had
declared that the upper age limit for the General Category candidates for
appointment be fixed at 35 years.
Pursuant to the requisition of the State Government, the
Jharkhand Public Service Commission, Ranchi had issued a Notification No. 11
of 2007 by which the third Civil Services Examination was conducted for
appointment of candidates in the Jharkhand Police Service. The Notification also
maintained the upper age limit for the General Category candidates as 35 years.
Learned counsel submits further that in spite of the above
upper age limit fixed at 35 years for General Category candidates in the Police
Manual, the Respondent No. 5 has issued the impugned Advertisement for
[3] [W.P. (S) No. 1667 of 2008
with W.P.(S) Nos. 1574 and 3354 of 2008]
appointment to the post of Sub-Inspector in the State Police Service fixing the
maximum upper age limit as 24 years as on 01.01.2008 and by a supplementary
advertisement increasing the age limit to 25 years as on 01.01.2009. Learned
counsel argues that the process for selection of candidates to the post of Sub-
Inspectors is now being sought to be taken for the first time after creation of the
State of Jharkhand and after more than 13 years from the date of last selection
tests. Learned counsel argues that by accumulating the vacancies for more than 5
years since after the creation of the State of Jharkhand and proceeding to fill up
the accumulated vacancies now by reducing the upper age limit for the General
Category candidates is an act, totally arbitrary and discriminatory on the part of
the Respondent-State.
Learned counsel argues further that by fixing the eligibility
criteria of minimum educational qualification of Graduate, the age at which a
majority of candidates appear at the Matriculation Examination is around 16 years
and adding five more years counted to complete Graduation, a candidate normally
acquires the Graduate Degree in between the age of 21/22 years. The petitioner
and such other candidates like him, had acquired the Graduate Degree in year
2002 and according to the eligibility criteria, had become eligible for appointment
on the post of Sub-Inspector. The State Government by its inaction has failed to
fill up the vacancies eversince the year 2000 when the State of Jharkhand came
into existence and has now for the first time after accumulating the vacancies, has
decided to fill up the vacancies but by fixing the upper age limit at 25 years, the
petitioner and several other candidates like him, have been debarred from their
appearance at the Selection Test on the ground of exceeding the maximum age
limit.
Referring in this context to the judgments of the Supreme Court in
A.I.R. 1994 SC 736 and to the judgment of the Patna High Court in 2000 (3)
P.L.J.R. 231, learned counsel argues that the aforesaid judgments declare that no
amendment can be brought about by administrative action to change the service
conditions and ignoring the service conditions as laid down in the State Policy.
Referring to the modification in Rule 658 of the State Police
Manual by way of amendment carried out on 12.11.2001, whereby the upper age
limit for the General Category candidates for appointment in the post in the
Jharkhand Police Service was declared as 35 years, learned counsel explains that
the aforesaid modification declares the State Policy. This is also reflected in the
Advertisement issued by the J.P.S.C., vide Advertisement No. 11 of 2007 for
recruitment of candidates in the Jharkhand Police Service in which, the upper age
limit has been fixed at 35 years for the General category candidates. Learned
[4] [W.P. (S) No. 1667 of 2008
with W.P.(S) Nos. 1574 and 3354 of 2008]
counsel argues that the policy as declared by the State Government could not have
been altered by the Respondent No. 3 by reducing the upper age limit to 25 years.
Learned counsel argues further that Articles 14, 12 and 48
A of the Constitution of India must be applied both in relation to Executive
Action as also in relation to a legislation and therefore, it is within the scope of
the powers of this Court to make a judicial review of the administrative action of
the Respondent-State Government.
5. Counter affidavit has though been filed by the Respondents but it
does not specifically controvert the grounds advanced by the petitioners. On the
contrary, the counter affidavit acknowledges the fact that the examinations for
appointment to the post of Sub-Inspectors in the State Police Service could not be
conducted since after 1994. Learned counsel for the Respondent-State
acknowledges that a modification in Rule 658 of the Police Manual was made
vide Memo No. 3300 dated 12.11.2001 by the State Government in the matter of
appointment to the post of Constables, under which the upper age limit to the post
of Constables in the General Category has been fixed at 35 years. The counter
affidavit does not assign or explain the reasons as to why despite the aforesaid
Modification in Rule 658 of the Police Manual, the upper age limit for selection
of the candidates for appointment to the posts of Sub-Inspectors in the General
Category, has now been limited to 25 years and what is the rationale behind the
reduction in the upper age limit.
6. Mr. P. K. Prasad, learned Advocate General has, however, tried to
explain that the amendment in Rule 658 of the Police Manual fixing the upper age
limit for the General Category candidates at 25 years, has been made by the State
Government under the orders of the State Government in exercise of the
Governor’s power under Article 309 of the Constitution of India and under the
provisions of Section 46 of the Police Act, 1861.
The impugned Advertisement (Annexure-2) is accordingly
issued by the Director General of Police, Jharkhand, Ranchi (Respondent No. 3),
wherein the upper age limit has been fixed as per the modification carried out in
Rule 658 of the Police Manual.
7. It needs to be noted that the impugned Notification/Advertisement
(Annexure-2), does not declare that the recruitment is to be made for any special
category of Officers in the Police Service or to fulfill any particular objective. The
Notification only declares the total vacancies in each of the categories of service,
including the post of Sub-Inspectors both in the General Category as well as in the
reserved categories.
8. It is not disputed that in the Advertisement issued by the State
Government through the Jharkhand Public Service Commission for appointment
[5] [W.P. (S) No. 1667 of 2008
with W.P.(S) Nos. 1574 and 3354 of 2008]
to the vacant posts of Civil Services including the State Police Service, an
advertisement for conducting the Third Civil Services Examination for
recruitment to the post of administrative services as well as the Police Services
was issued as recently as in the month of November, 2007. The upper age limit
for the General Category candidates in respect of the services advertised, was
fixed at 35 years.
9. Learned Advocate General would want to interpret the
Modification/amendment made in Rule 658 of the Police Manual as a legislative
Act within the competence of the Governor under the provisions of Article 309 of
the Constitution of India and would submit that the Modification by which the
upper age limit has been fixed at 25 years, cannot be subject of judicial review.
10. By a catena of decisions, the Supreme Court has laid down the
principles of judicial review applicable in case of administrative as well as in
legislative action. In cases where constitutionality and/or interpretation of any
legislation, which is made by the legislative body or by executive authority by
way of their authority is in question, the writ Court can certainly exercise the
power of judicial review. In the case of Union of India-versus-Pushpa Rani and
other, A.I.R. SCW (39) 6564, the Supreme Court has observed that even though
the matter relating to prescribing the mode of recruitment and qualifications,
criteria of selection etc. fall within the exclusive domain of the employer, yet the
power of judicial review can be exercised in such matters, if it is shown that the
action of the employer is contrary to any constitutional or statutory provisions or
is absolutely arbitrary or is vitiated due to mala fides.
The scope of judicial review when examining a policy of
the State Government is to check whether it violates the fundamental rights of the
citizens or is opposed to the provisions of the Constitution or opposed to any
statutory provision or manifestly arbitrary.
11. The petitioner in the instant case has questioned the legality of the
impugned Notification, wherein the upper age limit of the General Category
candidates has been fixed at 25 years and thereby, has also challenged the legality
of the modification made in the relevant Rule of the Police Manual by the
authority of the Governor in exercise of powers under Article 309 of the
Constitution of India. Challenge is made on the ground that reducing of the upper
age limit from 35 years to 25 years is arbitrary, and against the State Policy,
therefore is in violation of the provisions of Article 14, 12 and 48 A of the
Constitution of India.
12. The issue relating to fixation of upper age limit, in the matter of
recruitment to the Government posts came up for consideration before the Patna
High Court in the case of Dr. Rabindra Kumar Singh and others-versus-State of
[6] [W.P. (S) No. 1667 of 2008
with W.P.(S) Nos. 1574 and 3354 of 2008]
Bihar & Others, 2000 (3) P.L.J.R. 231 and more recently before the Jharkhand
High Court in the Case of Sanjeev Kumar Sahay & 3 others-versus-State of
Jharkhand & Others, 2008 (3) J.C.R. 267. In both the cases, though the
Advertisements were for appointment to the posts of Health Officers and to the
post of Civil Judge, Junior Division, the facts of the case were identical as in the
present case in as much as no prompt steps were taken by the Respondents-
authorities for filling up the vacant posts and such vacancies were allowed to
accumulate and finally after several years such vacancies were sought to be filled
up and the upper age limit was fixed with reference to a stipulated cut off date.
Taking note of the abnormal delay in filling up the vacancies, which has
accumulated through out the several years, the Court in the case of Dr. Rabindra
Kumar Singh & others (Supra) has observed as follows:-
“Although there is no compulsion on the part of the
Government to make appointment even though vacancies are
available, but if vacancies are allowed to accumulate and bulk
appointments are made at a time, there may be possibility of
candidates possessing inferior merit coming in–where
examinations are held periodically, the chances are that the best of
the available lot would be appointed–candidates, otherwise
eligible becoming overage is the inevitable fall-out of not making
recruitment periodically.”
13. The same situation arises in the present case. As admitted in the
counter affidavit of the Respondent-State, no effort for recruitment in the State
Police services was made ever since after 1994. Even after the creation of the
State of Jharkhand in the year 2000, the vacancies accumulated for several years
and it is only now that by the impugned Notification/Advertisement, the State
Government has decided to fill up the vacancies. By fixing the upper Age limit at
25 years for the General Category Candidates, those who were otherwise eligible
during the preceding years, have become over age and therefore not qualified in
terms of the eligibility criteria fixed in the impugned Advertisement.
14. As observed above, in the earlier modification in Rule 658 of the
Police Manual by way of amendment in the Police Act carried out on 12.11.2001,
the State Government had declared the upper age limit for recruitment in the State
Police Service at 35 years in the General Category. If this was a declaration of the
State Policy, then, in absence of any reason assigned or explanation offered, it is
not understood as to why the upper age limit has been reduced to 25 years and
what purpose which such reduction in the upper age limit would serve?
15. Under such circumstances, the contention of the petitioner that the
reduction of the upper age limit as indicated in the impugned Advertisement, is
arbitrary and in violation of the provisions of Article 14 and 16 of the Constitution
of India, is not without substance. The decision to fix the upper age limit at 25
[7] [W.P. (S) No. 1667 of 2008
with W.P.(S) Nos. 1574 and 3354 of 2008]
years has apparently not taken into consideration the fact that the recruitment
process is sought to be initiated for filling up such vacancies, which had
accumulated during the past several years, after a considerable delay and that
during this period of delay, several candidates who could have been otherwise
eligible, would be disqualified on account of becoming over age.
16. Even though, the recruitment relates to posts in the Police Service
for which standards of eligibility criteria, different from the standards in respect
of recruitment to other Government services may have to be reasonably fixed, yet
the criteria laid down for recruitment to the posts in the Police Services, must
satisfy the test of reasonableness and cannot under any circumstance reflect
arbitrariness and discrimination. A reasonable balance has to be maintained in the
light of the fact that the candidates, who could have been otherwise eligible,
cannot be deprived of the employment opportunities on account of the delay made
by the State Government in filling up the vacant posts in the Police Service.
17. Considering the above facts and circumstances, since the matter
relating to prescribing the mode of recruitment, criteria of selection etc. is within
the domain of the State Government, the matter is referred back to the State
Government to consider a review of its policy in the matter of fixing the upper
age limit taking into consideration the fact that by the earlier policy decision of
the State Government as declared in the amendment carried out in Rule 658 of the
Police Manual notified vide Memo No. 3300 dated 12.11.2001, the upper age
limit was fixed at 35 years and also taking into account the fact that the vacancies,
which have been allowed to accumulate for several years are now being sought to
be filled up after a considerable delay of more than eight years of the creation of
State of Jharkhand, thereby affecting the rights of several candidates, who could
have been otherwise eligible for appointment after having acquired the prescribed
educational qualifications during the preceding years in terms of the earlier State
Policy. Till such time a review is made, the process of recruitment in terms of the
impugned advertisement shall be kept in abeyance by the Respondents.
18. With these observations, these writ applications [W.P. (S) No.
1667 of 2008 with W.P. (S) Nos. 1574 and 3354 of 2008] are disposed of at the
stage of admission itself.
19. Let a copy of this order be given to the learned counsel for the
Respondent-State.
(D.G.R. Patnaik, J.)
APK/AFR