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2010 DIGILAW 92 (ORI)

Sk. Akhtarul Islam v. D. I. of Police

2010-02-17

A.S.NAIDU, B.N.MAHAPATRA

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JUDGMENT A.S. NAIDU, J. : The petitioner is a poor man, belonging to the down trodden class of the society. He is neither litiga¬tion minded nor litigation is his hobby, but then, circumstances have compelled him to enter into litigation, which he is con¬strained to pursue willy-nilly. He has approached the portals of this Court being aggrieved by the arbitrary action of the oppo¬site parties, who have disqualified him in course of the selec¬tion for the post of constable in General Railway Police, Cut¬tack. 2. According to learned counsel for the petitioner, in response to an advertisement issued in daily news paper inviting applications from eligible candidates, the petitioner applied in prescribed proforma for the post of constable on 18.8.2008. After due scrutiny of the application form and on being satisfied that the petitioner satisfies all the eligibility criteria,, his application was accepted and he was called upon to appear at the physical test on 1.9.2008. After the physical test, the opposite parties without any rhyme or reason withdrew the identity card and informed him that his form has been rejected. Being ag¬grieved, the petitioner approached the Public Relation Officer-cum-Superintendent of Railway Police and wanted to know the reasons for disqualifying him. The Public Relation Officer in¬formed the petitioner that as he had committed a mistake in calculation of his age and furnished wrong particulars in the application form, he was disqualified. The said fact was intimat¬ed to the petitioner by letter dated 21.10.2008 (Annexure-2). The relevant portion of the letter reads as follows: “....... In this connection, I am to inform you that you have been deprived of from further test of recruitment on 8.9.2008 due to wrong calculation of your age on your application form.....” The said decision is assailed in this writ petition. It is submitted that as per the advertisement the age of a candidate should not be less than 18 years and more than 25 years as on 1.1.2008. The date of birth of the petitioner as per the matricu¬lation certificate was 5.7.1985. Thus, his age as on 1.1.2008 was 22 years 5 months and 27 days. It appears that against Col. No. 6 of the application he had written his age as on 1.1.2008 to be 22 years 5 months and 27 days. The date of birth of the petitioner as per the matricu¬lation certificate was 5.7.1985. Thus, his age as on 1.1.2008 was 22 years 5 months and 27 days. It appears that against Col. No. 6 of the application he had written his age as on 1.1.2008 to be 22 years 5 months and 27 days. Thus, according to the petitioner, he was within the age prescribed in the advertisement had committed no mistake nor furnished any wrong particulars and as such, disqualifying him on that ground was not justified. 3. After receiving notice, counter affidavit has been filed by the Superintendent of Railway Police taking a stand that during the scrutiny it was found that the petitioner against Col.No.6 of the application form, reflected his age to be 22 years, 5 months and 27 days, but on actual calculation it was found that his age was 22 years 5 months and 26 days. In view of the aforesaid anomaly the Superintendent of Railway Police dis¬qualified the petitioner to appear the rest of the tests. 4. In course of hearing, learned counsel for the petitioner submitted that there is no dispute that the date of birth of the petitioner was 5.7.1985. It is also not disputed that the prescribed age of a candidate should be more than 18 years and less than 25 years as on 1.1.2008. The age of the peti¬tioner on calculation comes to 22 years, 5 months and 27 days. Thus, he is within the age limit prescribed. 5. The sole ground for rejection of the application is that the petitioner had wrongly reflected his age to be 22 years, 5 months 27 days in stead of 26 days. While disputing the said fact, in the alternative, it is submitted that the difference of one day in calculation of age, does not affect the merits of the case and on such a mistake on which the application should not have been rejected. 6. The petitioner, as stated earlier, belongs to the down trodden class of the society. He is not a very qualified person. The required qualification for the post is only HSC Examination passed. Thus, rejecting his application only because there is a mistake in the calculation of his age to the extent of only one day, appears to be unjust and unreasonable and arbitrary. 7. He is not a very qualified person. The required qualification for the post is only HSC Examination passed. Thus, rejecting his application only because there is a mistake in the calculation of his age to the extent of only one day, appears to be unjust and unreasonable and arbitrary. 7. In course of hearing, learned counsel for the State, however, submitted that in the advertisement there is a clause that if any of the materials/particulars furnished in the appli¬cation form are found to be not correct, then the application was liable to be rejected. But then, the said clause cannot be at¬tracted to the case in hand. In fact, the mistake in calculation of the age by one day appears to be an inadvertent one and not deliberate. Even otherwise, by such mistake, the petitioner does not gain anything. Thus, we find that the action of the authorities in rejecting the application of the petitioner was not justified. 8. After hearing learned counsel for the parties, to satisfy our curiosity, we made a calculation of ourselves. As it appears, there is no dispute with regard to the years and months of the petitioner’s age. The only controversy is with regard to number of days. Admittedly, the petitioner was born on 5th July 1985 Month of July carries 31 days. If the day on which the petitioner said to have born is taken into calculation. It ap¬pears, his age will be 22 years, 5 months and 27 days. In the alternative, if the said date is excluded, then it becomes 26 days. The time when the petitioner was born is not available. Thus, we find absolutely no discrepancy and it appears that the Superintendent of Railway Police concerned was in haste and in an arbitrary manner rejected the application of the petitioner. Such rejection appears to be not structured by the rational considera¬tion. 9. It is well settled that where Government activity in¬volves public element, the citizen has a right to claim rational treatment and when the State acts to the prejudice of a person, it has to be supported by legality. In such functioning, arbi¬trariness and discrimination have no role to play. In other words, every action of the executive must be fortified by reasons and should be free from arbitrariness. That is the very essence of rule of law and its bare minimum requirement. In such functioning, arbi¬trariness and discrimination have no role to play. In other words, every action of the executive must be fortified by reasons and should be free from arbitrariness. That is the very essence of rule of law and its bare minimum requirement. The decision taken in an arbitrary manner contradicts the principle of legiti¬mate expectation. The plea of legitimate expectation relates to procedural fairness in decision making process. Denial of admin¬istrative fairness is a constitutional anathema. (See E.P.Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ). 10. In the case of Haji T.M. Hassan Rawther v.Kerala Finan¬cial Corporation, AIR 1988 SC 157 , the apex Court observed that every action of the State or its instrumentality should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of dis¬crimination nor even apparently give an impression of bias, favouritism and nepotism or arbitrariness. 11. In the case of State of Andhra Pradesh and another v. Nalla Raja Reddy, AIR 1967 SC 1458 the constitutional Bench of the apex Court observed as under: “The official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions indis¬criminately.” The facts and circumstances of the present case reveal that the decision taken to reject the application of the petitioner is tainted with arbitrariness and is beyond rational thinking. 12. In course of hearing, this Court called upon the learned counsel for the State to obtain instruction as to whether any vacancies are existing.On instruction it is submitted that at present there are two vacancies for the post of constable and against the above vacancies, two constables are yet to join. 13. In view of the aforesaid facts and circumstances and the principles of law laid down, we allow the writ petition and direct the opposite parties to adjudge the suitability of the petitioner for appointment to the post of constable against the posts lying vacant and/or appoint him in the first post, which is going to be available in near future failing which the petitioner shall be entitled to a compensation of rupees one lakh, which shall be paid within three months or whichever is earlier. 10. 10. With the aforesaid observation and direction, the writ petition is allowed. B.N. MAHAPATRA, J. I agree. Petition allowed.