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Jharkhand High Court · body

2020 DIGILAW 1186 (JHR)

Amit Kumar Sinha v. State of Jharkhand

2020-12-17

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : Heard Mr. Rishi Pallava, the learned counsel appearing on behalf of the petitioners, Mr. Mohan Dubey, the learned counsel for the respondent State and Mr. Sanjoy Piprawal, the learned counsel appearing on behalf of the respondent-JPSC. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioners have preferred this writ petition for quashing the Advertisement No.2 of 2020. Further prayer is made for consideration of representation of the petitioners made for age relaxation and the prayer is also there for provisionally accepting the forms of the petitioners and to allow them to participate in the interview. 4. The petitioners are MBBS doctors who are working as Medical Officer on contract under different schemes in the State of Jharkhand. The petitioners have registered themselves under the Jharkhand Council of Medical Registration. The petitioner no.1 was initially working as a medical officer on contractual basis in Kodia, Chandankyari, Bokaro from 16.01.2018 to 31.05.2019 under National Health Mission Scheme and thereafter he is working as medical officer on contractual basis in Thakurgangati, Godda since 26.02.2020 till date. The petitioner no.2 is working as a medical officer on contractual basis in N.C.D Clinic Gumla since 18.03.2019 till date under National Health Mission Scheme. The petitioner no.3 is working as a medical officer on contractual basis in CHC Poreyahat, Godda since 21.01.2020 till date. The petitioner no.4 was initially working as a medical officer on contractual basis in CHC Nala, Jamtara from 28.06.2019 to 24.01.2020 under National Health Mission Scheme and thereafter he has joined in CHC Pathargama, Godda on 25.01.2020 and working till date. The JPSC came out with an advertisement no.2/2020 on 07.04.2020 for appointment of medical officer (regular) for the State of Jharkhand. Apart from the other qualifications and eligibility, the age of candidates has also been given in the said advertisement. The minimum age was fixed as 23 years as on 01.08.2020 for all the categories whereas the maximum age for different categories are fixed as for general -35 years, for MBC/BC-37 years, for female-38 years and for SC/ST (both male and female)-40 years. The minimum age was fixed as 23 years as on 01.08.2020 for all the categories whereas the maximum age for different categories are fixed as for general -35 years, for MBC/BC-37 years, for female-38 years and for SC/ST (both male and female)-40 years. The last date for filling up of the form was 08.05.2020 and thereafter the same was extended till 05.06.2020. The petitioners have crossed their upper age limit. The petitioners have also applied for appointment pursuant to that advertisement. The respondent JPSC rejected the candidature of the petitioners vide Annexure-9 on the ground of being over-age. Pursuant thereto, the petitioners have approached this Court. 5. Mr. Rishi Pallava, the learned counsel appearing on behalf of the petitioners attacked the said advertisement on the ground that cut-off date for counting of age with effect from 01.08.2020 has been fixed arbitrarily. He submitted that the petitioners are working with the government on contractual basis and they are entitled for age relaxation. By way of referring the advertisement of Jharkhand Staff Selection Commission [JSSC], he submits that in that examination the age of contractual employee was fixed at 55 years. He submits that the petitioners are also entitled for age relaxation as now the petitioners have become over age in view of the fact that the examination was not conducted by the State of Jharkhand and it has been conducted after 2014 by way of this advertisement meaning thereby after six years and due to that the petitioners have become over age. He submitted that the petitioners are working tirelessly in the pandemic like, Covid-19. By way of referring the notification dated 03.03.2011, he submitted that so far the vacancy position was required to be considered on every 31st December of every year. He submitted that this resolution has not been followed. He submitted that the case of the petitioners is fully covered in view of the judgment rendered by the Division Bench in the case of “Bhola Nath Rajak and Others v. State of Jharkhand and Others”. By way of relying on this judgment, he submitted that in this case the Division Bench has considered this aspect of the matter that there was huge backlog of undecided cases and large number of vacancies were accumulated from long time, therefore, cut off date for upper age limit modified. By way of relying on this judgment, he submitted that in this case the Division Bench has considered this aspect of the matter that there was huge backlog of undecided cases and large number of vacancies were accumulated from long time, therefore, cut off date for upper age limit modified. He further submitted that the case of the petitioner is also covered in view of the Division Bench judgment of this Court in case of “Sanjeev Kumar Sahay and Others v. State of Jharkhand and Others” reported in 2008(3) JCR 267 (Jhr). Paragraph nos.22, 23 and 25 are quoted hereinbelow: “22. Mr. S. Piprawall, learned counsel appearing for the Commission, adopted the argument advanced by learned Advocate General and submitted that this relaxation cannot be treated as precedence for all the time. 23. Mr. V.P. Singh, learned counsel appearing on behalf of the Jharkhand High Court, referring to rule 15 of the Jharkhand Judicial Services Recruitment Rules, 2004, submitted that there is no provision of relaxation of age in the said rule. However, Mr. Singh submitted that having regard to the facts of the case and the fair stand taken by the learned Advocate General, there would be no difficulty in giving one-time relaxation. 25. As noticed above, in the case of All India Judges' Association (supra), the Supreme Court issued specific directive for filling up the existing vacancies in Subordinate Courts and in all levels latest by 31 5t March, 2003. A Division Bench of this Court also In Rajnish Mishra's case (P.I.L. Case) (supra), decided on 6.1.2003 directed the Government to finalize the Rule which was not finalized within time. It was only by Gazette notification dated 4.4.2005, Rule was published and notified. In our considered opinion, therefore, 31st March, 2003 shall be cut-off date for the reason that if the Supreme Court and the High Court orders would have been complied with, the Rule could have been published in March, 2003.” 6. He also relied in the case of “Dr. Ami Lal Bhat v. State of Rajasthan and Others” reported in (1997) 6 SCC 614 . By way of relying on this judgment, he submitted that the Hon'ble Supreme Court held the validity of rules relating to cut off date being fixed with reference to 1st of January of the year following the application is upheld. Ami Lal Bhat v. State of Rajasthan and Others” reported in (1997) 6 SCC 614 . By way of relying on this judgment, he submitted that the Hon'ble Supreme Court held the validity of rules relating to cut off date being fixed with reference to 1st of January of the year following the application is upheld. He submitted that in the case of the petitioners also the rule has not been followed. 7. Mr. Sanjoy Piprawal, the learned counsel appearing on behalf of the respondent JPSC submitted that the Government of Jharkhand sent requisition to the JPSC for starting selection process for appointment of medical officer against 380 regular vacancies. Pursuant to the aforesaid requisition, the JPSC came out with Advertisement no.2 of 2020 for which total 380 vacancies were there. The last date for submission of on line application form was fixed as 08.05.2020 and last date of submission of on line application forms was extended upto 05.06.2020. 01.08.2020 has been fixed as cut off date for calculation of the minimum and maximum age of the candidates. In view of Clause-6 of the advertisement, 23 years have been fixed as minimum age limit of the candidates and maximum age of the candidates of respective categories have been fixed as, unreserved35 years, EBC-I and BC-II-37 years, Female (unreserved, EBC-1 and BC-II)-38 years and SC,ST (male and female)-40 years. The petitioners also submitted their on line application forms for consideration of their candidature and after scrutiny the petitioners have been found to be over age and thereafter their claim has been rejected by way of Annexure-9. The JPSC decided to conduct the interview of the eligible candidates from 04.08.2020 to 25. 08.2020. The interview has already been conducted as per the schedule. He submitted that in these facts, the case of the petitioners is fit to be rejected. He further submitted that the result of the said examination has already been published. He further submitted that the petitioners are working on contractual basis since 2019-20 only. There is no provision of relaxation for contractual employee, which is the policy matter of the State government. He further submitted that the result of the said examination has already been published. He further submitted that the petitioners are working on contractual basis since 2019-20 only. There is no provision of relaxation for contractual employee, which is the policy matter of the State government. He further submitted that the cases relied of the Division Bench of this Court by the learned counsel appearing on behalf of the petitioners are per incuriam, the judgment as has been held by the Division Bench of this Court in analogous cases in case of “Krishna Kumar Mishra v. State of Jharkhand and Another” [WP(S)No.6302 of 2017 and analogous cases], he submits that in view of Division Bench of two Division Bench W.P.(S) No.6302 of 2017 and in analogous cases, the judgment relied by the petitioners has been held to be per incuriam. He further relied in a judgment of co-ordinate Bench in S.P.(S) No.1679 of 2018 with W.P.(S) No.1733 of 2018 and submitted that the co-ordinate Bench has considered the Division Bench judgment in W.P.(S) No.6302 of 2017 and the judgment relied by the learned counsel for the petitioner. The argument with regard to cut off date has been rejected by the co-ordinate Bench. 8. Mr. Mohan Dubey, the learned counsel appearing on behalf of the respondent State submitted that the petitioners are over oge and there is no provision of relaxation. Thus, their candidature has been rejected for being over age. He further submitted that pursuant to the order dated 22.09.2020, the State has further filed the supplementary counter affidavit wherein it has been disclosed that so far contractual employees are concerned, one time relaxation was there and in view of the departmental Notification no.639 dated 12.08.2011, Health, Medical Education and Family Welfare Department Medical Cadre Contractual Appointment Regularisation Rules, 2011 had been framed and in the light of the said Rules, medical officers working on contract were regularised vide notification no.1198(3) dated 18.10.2013. It had been clearly provided in the Rule 12 that the regularization rules would be used only once and the same will not be treated as precedence and now the said rule is not in effect. He relied in the case of “Badanga Talukdar v. Saifudullah Khan and Others” reported in AIR 2012 SC 1803 . Paragraph nos.22, 28 and 29 of the said judgment are quoted hereinbelow: “22. He relied in the case of “Badanga Talukdar v. Saifudullah Khan and Others” reported in AIR 2012 SC 1803 . Paragraph nos.22, 28 and 29 of the said judgment are quoted hereinbelow: “22. The learned senior counsel submits that respondent No.3 had in fact rejected the candidature of respondent No.1 strictly in accordance with the instructions issued in the "Information to the candidates on the Combined Competitive (Main) Examination". Instruction No. 13 clearly stipulates that "any application form received without all or some of the enclosures is liable to be summarily rejected. Any enclosure which was not sent along with the application earlier but sent subsequently by the candidates will not be entertained. Thus candidates must ensure that the application form is properly filed in and is accompanied by all the relevant documents." Mr. Bhushan submits that in the case of respondent No. 1, he was required to submit an attested copy of certificate of Locomotor Disability. The High Court records that the necessary certificate was not submitt ed by respondent No.1 before the last date of receipt of applications, which was 11th September, 2006. Learned senior counsel has also relied on a judgment of this Court in the case of Karnataka Public Service Commission and Ors. v. B.M. Vijaya Shankar and Ors. 28. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India. 29. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of respondent No. 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.” 9. On relying on this judgment, he submitted that power of relaxation is not mentioned in the advertisement and the Supreme Court rejected that judgment of the High Court whereby the High Court has directed for relaxation in age. 10. In view of the above facts and the arguments advanced by the learned counsels appearing on behalf of the parties, the Court has gone through the materials on the record and on perusal of the advertisement it is clear that the cut off date has been fixed for calculating the age as 01.08.2020. The minimum and maximum age has been disclosd in Clause-6 of the said advertisement. The petitioners are working on the contractual basis with the Government of Jharkhand only w.e.f. 2019-20. The power of relaxaton has not been disclosed in the said advertisement. The main object of Article 16 is to create constitutional right to equality of opportunity for employment in public offices. It has not been pleaded that the appointment of the petitioners had been made on contractual basis pursuant to any adverisement in view of contractual appointment the petitioners have not acquired the status of government servant. The main object of Article 16 is to create constitutional right to equality of opportunity for employment in public offices. It has not been pleaded that the appointment of the petitioners had been made on contractual basis pursuant to any adverisement in view of contractual appointment the petitioners have not acquired the status of government servant. A reference in this regard may be made to the case of “Union Public Service Commission v. Girish Jayanti Lal Vaghela and Others” reported in (2006) 2 SCC 482 . Paragraph nos.12, 21 and 24 of the said judgment are quoted hereinbelow: “12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words “employment or appointment” cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute.) 21. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute.) 21. It is neither pleaded nor is there any material to show that the appointment of Respondent 1 had been made after issuing public advertisement or the body authorised under the relevant rules governing the conditions of service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was dehors the rules. The appointment was not made in a manner which could even remotely be said to be compliant with Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a government servant had not arrived. While working as a contractual employee Respondent 1 was not governed by the relevant service rules applicable to Drugs Inspector. He did not enjoy the privilege of availing casual or earned leave. He was not entitled to avail the benefit of general provident fund nor was he entitled to any pension which are normal incidents of a government service. Similarly, he could neither be placed under suspension entitling him to a suspension allowance nor could he be transferred. Some of the minor penalties which can be inflicted on a government servant while he continues to be in government service could not be imposed upon him nor was he entitled to any protection under Article 311 of the Constitution. In view of these features it is not possible to hold that Respondent 1 was a government servant. 24. For the reasons discussed above, we are clearly of the opinion that Respondent 1 cannot be said to be a government servant as he was working on contract basis and, therefore, he was not eligible for any relaxation in upper age-limit. The view taken by the High Court is clearly erroneous in law and is liable to be set aside.” 11. It is well settled proposition of law that a casual employee even considering long duration, they did not confer any legal right for mandamus for relaxation of age limit. The view taken by the High Court is clearly erroneous in law and is liable to be set aside.” 11. It is well settled proposition of law that a casual employee even considering long duration, they did not confer any legal right for mandamus for relaxation of age limit. A reference in this regard may be made in case of “Union of India and Another v. Arulmozhi Iniarasu and Others” reported in (2011) 7 SCC 397 . Paragraph nos.16 and 17 of the said judgment are quoted hereinbelow: “16. We may now advert to the second limb of the question in para 13. The issue need not detain us for long as in our view the factual position as obtaining in the present case does not fit in with the fact situation in Nagendra Chandra. In the instant case, indubitably, the respondents were engaged as part-time contingent casual labourers in the office of the Commissioner of Central Excise for doing all types of work as may be assigned to them by the office. Their part-time engagement was need based for which they were to be paid on hourly basis. Though their stand is that many a times they were required to work day and night but it is nowhere stated that they were recruited or ever discharged the duties of a “Sepoy” for which recruitment process was initiated vide public notice dated 14-1-2008 and the Tribunal as also the High Court has directed the appellants to grant relaxation in age-limit over and above what is stipulated in the recruitment rules/advertisement. In view of the stated factual scenario, in our opinion, the engagement of the respondents as casual labourers even for a considerably long duration did not confer any legal right on them for seeking a mandamus for relaxation of age-limit. 17. We have no hesitation in holding that Nagendra Chandra case has no application on facts in hand and the impugned direction by the Tribunal, as affirmed by the High Court based on the said decision, was clearly unwarranted.” 12. The judgment relied by the petitioners of the Division Bench of this Court is per incuriam as held by the Division Bench in W.P.(S) No.6302 of 2017. The appointment has already been made. 13. As a cumulative effect of the above discussion, no relief can be extended to the petitioners. 14. The writ petition is dismissed. 15. The judgment relied by the petitioners of the Division Bench of this Court is per incuriam as held by the Division Bench in W.P.(S) No.6302 of 2017. The appointment has already been made. 13. As a cumulative effect of the above discussion, no relief can be extended to the petitioners. 14. The writ petition is dismissed. 15. I.A. If any also stands disposed of.