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2016 DIGILAW 1464 (JHR)

Mritunjay Singh v. State of Jharkhand

2016-10-18

D.N.PATEL, RAJESH SHANKAR

body2016
ORDER : D.N. Patel, J. This Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge passed in W.P. (S) No. 5058 of 2010 dated 3rd September, 2014, whereby the petition preferred by this appellant was dismissed mainly on the ground that this appellant (original petitioner) applied for the post of Constable (Driver) and cut-off date for submitting the documents was 25th February, 2010 and, as he has submitted his vital certificate of training of Home Guard on 26th May, 2010, he was not given the benefit of such certificate; because after the prescribed cut-off date of 25th February, 2010, be cannot submit his document. On this ground, the writ petition was dismissed and, hence, the original petitioner has preferred the present Letters Patent Appeal. 2. Having heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that public advertisement was issued by the respondent-State bearing Advertisement No. 1/2010 inviting applications for the post of Constable (Driver) for which this appellant had preferred an application. The prescribed last date for submitting all the documents was 25th February, 2010. 3. It appears that along with the application preferred by this appellant, he had never submitted the certificate of training of Home Guard. This is an admitted fact. 4. It further appears appellant could obtain the training certificate in the month of April, 2010 (Annexure-4). Thus the training certificate of the Home Guard was obtained in the month of April, 2010 and was submitted with a forwarding letter dated 26th May, 2010 and, hence, he was not entitled to the benefit of this certificate. There is a reservation of 50% for the Home Guard trained candidates, but, such benefit cannot be given to this appellant because this appellant had not completed the training prior to 25th February, 2010 nor he was issued a certificate prior to 25th February, 2010, nor he has submitted such document prior to 25th February, 2010. 5. It ought to be kept in mind that whenever there is a cut-off date given in the advertisement either for age limit or for educational qualification or for submitting the documents, there are bound to few persons falling on the wrong side of the cut-off date. 5. It ought to be kept in mind that whenever there is a cut-off date given in the advertisement either for age limit or for educational qualification or for submitting the documents, there are bound to few persons falling on the wrong side of the cut-off date. If any person is falling on the wrong side of the cut-off date as he could not get the proper educational qualification or such other requirements prior to the cut-off date then such cut-off date cannot be extended by this Court otherwise there will be no end of such type of submission of documents. Few persons may be late by few days few other persons may be late by few months, and there can also be a possibility that few persons may be late by few years. If this type of cut-off date are extended by this Court then there will be no declaration of the final result at all of any public post. 6. It has been held by the Hon'ble Supreme Court in the case of Jagdish Prasad Sharma and others v. State of Bihar and others reported in (2013) 8 SCC 633 in paragraph Nos. 74, 77, 78 and 79 as under :- "74. The said submission, in our view, is not acceptable on account of the fact that in the first paragraph of Section 67(a) it has been categorically stated that the age of superannuation would be 62 years. The second paragraph of the said section makes it even more clearer since it reiterates that the date of retirement of non-teaching employees, other than the inferior servants, shall be the date on which he attains the age of 62 years. The first proviso also indicates that the university shall in no case, extend the period of service of any of the teaching or non-teaching employee after he attains the age of 62 years. The second proviso, however, states that even after retirement, teachers may be reappointed in appropriate cases up to the age of 65 years in the manner laid down in the Statutes made in this behalf in accordance with the guidelines of the Commission. 27. The second proviso, however, states that even after retirement, teachers may be reappointed in appropriate cases up to the age of 65 years in the manner laid down in the Statutes made in this behalf in accordance with the guidelines of the Commission. 27. We are inclined to agree with such submission mainly because of the fact that in the amended provisions of Section 67(a) it has been categorically stated that the age of superannuation of non-teaching employees would be 62 years and in no case should the period of service of such non-teaching employees be extended beyond 62 years. A difference had been made in regard to the teaching faculty whose services could be extended up to 65 years in the manner laid down in the University Statutes. There is no ambiguity that the final decision to enhance the age of superannuation of teachers within a particular State would be that of the State itself. The right of the Commission to frame regulations having the force of law is admitted. However, the State Governments are also entitled to legislate with matters relating to education under List-III, Entry 25. So long as the State legislation did not encroach upon the jurisdiction of Parliament the State legislation would obviously have primacy over any other law. If there was any legislation enacted by the Central Government under List-III. Entry 25, both would have to be treated on a par with each other. In the absence of any such legislation by the Central Government under List-III, Entry 25, the regulations framed by way of delegated legislation have to yield to the plenary jurisdiction of the State Government under List-III, Entry 25. 78. We are then faced with the situation where a composite scheme has been framed by UGC, whereby the Commission agreed to bear 80% of the expenses incurred by the State if such scheme was to be accepted, subject to the condition that the remaining 20% of the expense would be met by the State and that on and from 1.4.2010, the State Government would take over the entire burden and would also have enhanced the age of superannuation of teachers and other staff from 62 to 65 years. There being no compulsion to accept and/or adopt the said Scheme, the States are free to decide as to whether the Scheme would be adopted by them or not. There being no compulsion to accept and/or adopt the said Scheme, the States are free to decide as to whether the Scheme would be adopted by them or not. In our view, there can be no automatic application of the recommendations made by the Commission, without any conscious decision being taken by the State in this regard, on account of the financial implications and other consequences attached to such a decision. The case of those petitioners who have claimed that they should be given the benefit of the Scheme de hors the responsibility attached thereto, must, therefore, fail. 79. However, within this class of institutions there is a separate are group where the State Governments themselves have taken a decision to adopt the Scheme. In such cases, the consequences envisaged in the Scheme itself would automatically follow." (Emphasis supplied) 7. It was held by the Hon'ble Supreme Court in the case of Dr. (Mrs.) Sushma Sharma v. State of Rajasthan, reported in AIR 1985 SC 1367 , in paragraph No. 30 as under :- “30. The object of this legislation was to provide for absorption of temporary lecturers of long standing. So therefore experience and continuous employment were necessary ingredients. The Hindi version of the Ordinance used the expression "ke prarambh ke samaya is roop me karya kar rahe hein" is capable of meaning "and are continuing" to work as such at the time of the commencement of the Ordinance. Keeping the back-ground of the purpose of the Act in view that would be the proper construction and if that is the proper construction which is in consonance with the English version of the Ordinance and the Act as well as with the object of the Act then in our opinion the Act and the Ordinance should be construed to mean that only those would be eligible for screening; who were appointed prior to June 25, 1975 and were continuing at the time of the commencement of the Ordinance i.e. June 12, 1978 i.e. approximately about three years. If that is the correct reading then we are unable to accept the criticism that those who were for a short period appointed prior to June 25, 1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. June 12, 1978 would also be eligible. If that is the correct reading then we are unable to accept the criticism that those who were for a short period appointed prior to June 25, 1975 then again with interruption were working only at the time of the commencement of the Ordinance i.e. June 12, 1978 would also be eligible. In other words people with very short experience would be eligible for absorption. That cannot be the purpose of the Act. It cannot be so read reasonably. Therefore on a proper construction it means that all temporary lecturers who were appointed as such on or before June 25, 1975 and were continuing as such at the commencement of the Ordinance shall be considered by the University for screening for absorption. The expression "were continuing" is significant. This is in consonance with the object of the Act to ensure continuity of experience arid service as one of the factors for regularising the appointment of the temporary lecturers. For regularising the appointment of temporary lecturers, certain continuous experience is necessary. If a Legislature considers a particular period of experience to be necessary, the wisdom of such a decision is not subject to judicial review. Keeping the aforesaid reasonable meaning of Clause 3 of the Ordinance and Section 3 of the Act in view, we are of the opinion that the criterion fixed for screening for absorption was not an irrational criterion not having any nexus with the purpose of the Act. Therefore, the criticism that a teacher who was working even for two or three months only before June 25, 1975 and then with long interruptions was in employment of the University at the time of the commencement of the Ordinance would be eligible but a teacher who had worked continuously from June 26, 1975 i.e., after the date fixed i.e. June 25, 1975 for three years would be ineligible and as such that will be discrimination against long experience, cannot be accepted. Such a construction would be an unreasonable construction unwarranted by the language used in the provisions concerned. It is well-settled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a 'particular job or a particular employment is not subject to judicial review. We need not refer to a large number of decision. (Emphasis Supplied) 8. It is well-settled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the Legislature, and what period should be sufficient for a 'particular job or a particular employment is not subject to judicial review. We need not refer to a large number of decision. (Emphasis Supplied) 8. It was held by the Hon'ble Supreme Court in the case of State of Bihar v. Ramjee Prasad, reported in (1990) 3 SCC 368 , 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 Court's 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 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 cut-off date. 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 cut-off date. Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted front 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 Government's action of fixing the last date for receipt of applications as January 31, 1988 as arbitrary." (Emphasis supplied) 9. It was held by the Hon'ble Supreme Court in the case of Ami Lal Bhat (Dr.) v. State of Rajasthan reported in (1997) 6 SCC 614 , 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 cut-off 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 cut-off 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 cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut-off date. That cannot make the cut-off 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. 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 cut-off 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 cut-off date, far from being arbitrary, makes for certainty in determining the maximum age. 7. In the present case, the cut-off 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 cut-off 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 cut-off date is less than a year. 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 cut-off 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 cut-off date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cut-off date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cut-off date. But there is no basis for urging that this is the only reasonable cut-off date. Even such a date is liable to question in given circumstances. In the first place, making a cut-off 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 cut-off date may well contend the cut-off date is unfair since the advertisement could have been issued earlier; or in the alternative that the cut-off date could have been fixed later at the point of selection or appointment. Such an argument is always open irrespective of the cut-off 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 cut-off date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cut-off date can be the last date for receiving applications appears to be without any basis. In our view the cut-off 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. 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 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 cut-off 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 cut-off 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) 10. It was held by the Hon'ble Supreme Court in the case of Ramrao v. All India Backward Class Bank Employees Welfare Assn., reported in (2004) 2 SCC 76 , in paragraph Nos. 29, 31, 32 and 33 as under : "29. It is now well settled that for the purpose effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cut-off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. It is now well settled that for the purpose effecting promotion, the employer is required to fix a date for the purpose of effecting promotion and, thus, unless a cut-off date so fixed is held to be arbitrary or unreasonable, the same cannot be set aside as offending Article 14 of the Constitution of India. In the instant case, the cut-off date so fixed having regard to the directions contained by the National Industrial Tribunal which had been given a retrospective effect cannot be said to be arbitrary irrational, whimsical or capricious. 31. It is not in dispute that a cut-off date can be provided in terms of the provisions of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary it has been observed: (SCC p. 546. para 21) "21. .... 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, SCC at 310 : SCR at p. 579 and Sushma Sharma (Dr.) v. State of Rajasthan, SCC at 66 : SCR at p. 269.)". 32. If a cut-off date can be fixed indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India. 33. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employees seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India. 33. Whenever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut-off date, but the fact that some persons or a section of society would face hardship by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires Article 14 of the Constitution. (Emphasis supplied) 11. It was held by the Hon'ble Supreme Court in the case of Govt. of A.P. v. N. Subbarayudu, reported in (2008) 14 SCC 702 , in paragraph Nos. 5, 7, 8 & 9 as under : "5. In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab v. Amar Nath Goyal.) 7. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection. 8. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar v. Ramjee Prasad, Union of India v. Sudhir Kumar Jaiswal (vide SCC para 5). Romrao v. All India Backward Class Bank Employees Welfare Assn. (vide SCC para 31). University, Grants Commission v. Sadhana Chaudhary, etc. It follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless me said cut-off date leads to some blatantly capricious or outrageous result. 9. As has been held by this Court in Aravali Golf Club v. Chander Hass and in Govt. of A.P. v. P. Laxmi Devi the Court must maintain judicial restraint in matters relating to the legislative or executive domain. (Emphasis supplied) 12. In the facts of the present case, Home Guard training certificate was not given prior to 25th February, 2010. Looking to Annexure-4 this certificate was given in the month of April, 2010 meaning thereby to, this appellant was not even the trained Home Guard certificate prior to 25th February, 2010 and hence, he cannot get the benefit of reservation in the Home Guard. 13. In view of the aforesaid facts, reasons and judicial pronouncements no error has been committed by the learned Single Judge while dismissing the writ petition preferred by this appellant bearing W.P. (S) No. 5058 of 2010 dated 3rd September, 2014 and we see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and hence, the same is dismissed. L.P.A. dismissed.