JUDGMENT : I.A. No. 8722 of 2022 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 112 days in preferring this Letters Patent Appeal. 2. Heard. 3. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application more particularly at paragraph-7 thereof, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal within the period of limitation. 4. Accordingly, I.A. No. 8722 of 2022 is allowed and delay of 112 days in preferring the appeal is condoned. L.P.A. No. 391 of 2022 5. The instant intra-court appeal preferred under Clause-10 of Letters Patent is directed against the order/judgment dated 13.04.2022 passed by the learned Single Judge of this Court in W.P. (S) No. 1736 of 2011, whereby and whereunder, the decision taken in memo no. 190 dated 09.02.2011, by which, the representation of the writ petitioner was rejected for his appointment as Constable in terms of advertisement being Advertisement No. 01/2004. 6. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, are as hereunder. 7. It is the case of the writ petitioner that an advertisement being Advertisement No. 01/2004 was published in the newspaper for selection of the Constables in all the districts of Jharkhand. The writ petitioner applied for the aforesaid post and after completing the process, he was called for the written examination and physical test at Giridih. 8. The height and chest of the appellant were measured and master chart was prepared. The merit list of successful candidates was prepared and published in the newspapers whereby he was declared successful. The writ petitioner received a call letter dated 01.04.2007 issued by the Superintendent of Police, Hazaribagh informing that he has been selected and he was directed to appear in the Police Line, Hazaribagh along with all the original documents. Thereafter, the writ petitioner appeared in the Police Line, Hazaribagh on the date fixed along with all original documents which were duly verified and found to be genuine and he was directed to submit the originals of his all educational and other certificates in the office of Superintendent of Police, Hazaribagh. Thereafter, the writ petitioner appeared in the Police Line, Hazaribagh on the date fixed along with all original documents which were duly verified and found to be genuine and he was directed to submit the originals of his all educational and other certificates in the office of Superintendent of Police, Hazaribagh. Thereafter, on objection, his height was re-measured and measurement of his height was lesser than what was recorded in the master chart. The writ petitioner was not allowed to join his duties for the reasons best known to the respondents and no reason was assigned to the writ petitioner for not allowing him to join and perform his duties. The writ petitioner having no other option, has approached to this Court by filing writ petition being W.P. (S) No. 1580 of 2009, in which, the respondent-authority has appeared and filed reply by way of counter affidavit. 9. The case was taken upon on 19.05.2010 and hearing both sides, the Court has been pleased to direct the appellant to be present physically before the Civil Surgeon-cum-Chief Medical Officer, Hazaribagh along with 3 coloured photographs and the CMO, Hazaribagh was directed to measure the height of the writ petitioner and report to the High Court. The height of the writ petitioner was recorded as 177cm. The case of the writ petitioner was again taken up on 05.07.2010 and after hearing both the parties, this Court has disposed of the case directing the writ petitioner to file representation before the respondent no. 3 who shall consider the case of the writ petitioner. The writ petitioner filed representation before the respondent no. 3 on 02.08.2010. The case of the writ petitioner was rejected vide memo no. 190 dated 09.02.2011 for the reason that the pointes allotted for the heights of 175.5 cm and 177 cm is the same, i.e., 11 points and again the points of the writ petitioner fell short by one point from the last selected candidate. Being aggrieved with the aforesaid order, the writ petitioner has filed writ petition being W.P. (S) No. 1736 of 2011 but the learned Single Judge after taking into consideration the aforesaid fact, has refused to interfere with the order impugned dated 09.02.2011, hence, the present appeal. 10. It appears from the pleading made in the writ petition as referred above that in terms of the advertisement no. 10. It appears from the pleading made in the writ petition as referred above that in terms of the advertisement no. 01/2004, the writ petitioner along with others had participated in the process of selection for his appointment as Constable. The writ petitioner, although, has been found to be successful and the appointment letter has also been issued. However, at the time of joining when his height was again measured, it was found to be 175.5 cm. and as such, he was not permitted to join. 11. The writ petitioner, being aggrieved with the aforesaid action of the authorities, has approached to this Court by filing the writ petitioner being W.P. (S) No. 1580 of 2009, in terms thereof, his height was again re-measured and he was found to be 177 cm. Accordingly, the joining of the writ petitioner has not been accepted since, he was found to be less in height to the extent of 0.5 cm and hence, he has obtained 11 marks as per the parameters of height i.e. 177 cm and accordingly, he was found to have obtained less marks than the last selected candidate. 12. The writ petitioner against the said decision of the authority again come to this court by filing writ petition being W.P. (S) No. 1736 of 2011. 13. The learned Single Judge, after taking into consideration the fact that after re-measurement also the writ petitioner was found to be less in height to the extent of 0.5 cm and hence, he has obtained 11 marks which was less than the marks obtained by the last selected candidates, which is the subject matter of the instant appeal. 14. Mr. Obaid Ahmad, learned counsel appearing for the appellant-writ petitioner has submitted by referring to the decision taken by the Deputy Inspector General of Police as contained in memo no. 337 dated 24.03.2007, whereby and whereunder, the decision was taken to give relaxation of 0.5 cm, but the aforesaid decision has not been taken into consideration in right perspective by the learned Single Judge. 15. It has been submitted that if the aforesaid decision would have been taken into consideration, then the writ petitioner would have been given relaxation to the extent of 0.5 cm and he would have been appointed. 16. Learned counsel for the appellant, in the aforesaid premise, has submitted that the impugned judgment suffers from infirmity. 17. Per contra, Mr. 15. It has been submitted that if the aforesaid decision would have been taken into consideration, then the writ petitioner would have been given relaxation to the extent of 0.5 cm and he would have been appointed. 16. Learned counsel for the appellant, in the aforesaid premise, has submitted that the impugned judgment suffers from infirmity. 17. Per contra, Mr. Rahul Saboo, learned G.P.-II appearing for the State of Jharkhand has submitted that although, the Deputy Inspector General of Police has come out with memo no. 337 dated 24.03.2007 but the same will have no bearing since the question of relaxation is to be given by the State, not by the functionaries of the State. 18. Learned Single Judge, has taken into consideration minimum requirement of having 12 marks and if one or the other candidates having measured the height of 177.5 cm, then the writ petitioner would have got 12 marks but since his height assessed on re-measurement in between 175.5 to 177 cm, therefore, he has been given only 11 marks which has been found to be less from the last selected candidates and accordingly, he has been declared to be unsuccessful. 19. According to the learned counsel, the learned Single Judge has taken into consideration the aforesaid fact and if in that circumstance, the order impugned dated 09.02.2011, rejecting the claim of the writ petitioner has been refused to be interfered with, the same cannot be said to suffer from an error. 20. We have heard the learned counsel for the parties, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order. 21. The issue which requires consideration as to whether the Deputy Inspector General of Police while issuing the memo being memo no. 337 dated 24.03.2007 can have its bearing in the process of selection regarding relaxation in the height. 22. The same is having bearing, since, the fact herein is that the writ petitioner at the initial stage was found to be 177.5 and subsequent to his success and after issuance of appointment letter, when has reported for his joining, then his height on re-measurement was found to be 175.5 and accordingly, his joining was not accepted. 23. 22. The same is having bearing, since, the fact herein is that the writ petitioner at the initial stage was found to be 177.5 and subsequent to his success and after issuance of appointment letter, when has reported for his joining, then his height on re-measurement was found to be 175.5 and accordingly, his joining was not accepted. 23. The writ petitioner has taken the ground that once the decision has been taken by the Deputy Inspector General of Police for granting relaxation, then relaxation ought to have been granted, then the writ petitioner would have been selected. 24. The question of relaxation is the exclusive domain of the State and the same cannot be exercised by the functionaries of the State. 25. The law is settled that the relaxation cannot be granted in favour of one or the other candidates, rather, the same is to be taken by way of policy decision and if one or the other candidates is coming under the fold of relaxation clause, the relaxation is to be granted. 26. The further law is settled that if the relaxation will be granted to one particular candidate, then question would be that why not to others and in that view of the matter, if the relaxation will be granted, then it will hit the principle as laid down under Article 14 of the Constitution of India, as has been held in the case of Bedanga Talukdar vs. Saifudaullah Khan and Others, AIR 2012 SC 1803 . The relevant paragraphs, paragraph nos. 28 and 29 of the said judgment, are quoted hereunder as: “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 cannot 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. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot 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. 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.” 27. This Court, on the premise of the aforesaid judgment is of the view that even if the Deputy Inspector General of Police has come out with the decision to grant relaxation, the same will have no binding effect, since, the same has not been issued by the State Government by way of policy decision. 28. This Court, on the premise of the aforesaid judgment is of the view that even if the Deputy Inspector General of Police has come out with the decision to grant relaxation, the same will have no binding effect, since, the same has not been issued by the State Government by way of policy decision. 28. Further, in the context of the fact of this case, the height is the parameter for allocation of the marks, basis upon which, the merit list is to be prepared, as would appear from stipulation to that effect made at Annexure-8 available at Page-31 of the paper book, which is being referred as under: ^^11- es/kk lwph %& ¼d½ 'kkjhfjd {kerk tkap ,oa fyf[kr ijh{kk esa lQy mEehnokjksa dh es/kk lwph ¼esfjV fyLV½ mEehnokjksa dh ÅapkbZ vkSj 'kS{kf.kd ;ksX;rk ds fy, fu/kkZfjr vadksa ds dqy ;ksx ds vk/kkj ij rS;kj dh tk;sxhA vad fuEukafdr :i ls fu/kkZfjr gSa %& ÅapkbZ ¼lsŒehŒ esa½ ¼iq:"k ds fy,½ vad ÅapkbZ ¼lsŒehŒ esa½ ¼efgykvksa ds fy,½ vad 'kS{kf.kd ;ksX;rk vad 155 00 148 00 eSVªhd mRrhZ.k 06 155-1&157 01 148-1&150 01 baVj ;k led{k ,oa mlds Åij 07 157-1&159 02 150-1&152 02 159-1&161 03 152-1&154 03 161-1&163 04 154-1&156 04 163-1&165 05 156-1&158 05 165-1&167 06 158-1&160 06 167-1&169 07 160-1&162 07 169-1&171 08 162-1&164 08 171-1&173 09 164-1&166 09 173-1&175 10 166-1&168 10 175-1&177 11 168-1&170 11 177-1&179 12 170-1&172 12 179-1&181 13 172-1&174 13 181-1 ls Åij 14 174-1 ls Åij 14 lQy mEehnokjksa dh ojh;rk lwph mudh ÅapkbZ ,oa 'kS{kf.kd ;ksX;rk ds vk/kkj ij ÁkIr vadksa ds vk/kkj ij gksexkMZ ,oa xSj&gksexkMZ ds fy, vyx&vyx cukbZ tk;sxhA vkjf{kr oxZ dk dksbZ mEehnokj ;fn lkekU; oxZ ds cjkcj vad ÁkIr djrk gS] rc og lkekU; oxZ dk mEehnokj ekuk tk;sxkA ;fn nks ;k nks ls vf/kd mEehnokj ds ÁkIrkad ,d gh gks rks ml ifjfLFkfr esa vkilh ojh;rk mudh mez dh ojh;rk ds vk/kkj ij ,oa VkbZ gksus ij mudh 'kS{kf.kd ;ksX;rk ds vk/kkj ij fu/kkZfjr dh tk;sxhA blesa Hkh VkbZ gksus ij vkilh ojh;rk ÅapkbZ ds vk/kkj ij fu/kkZfjr dh tk;sxhA----------** 29. It appears from the aforesaid reference of the marks based upon the height that the marks vary from one centimeter. If the writ petitioner would have been given relaxation, the entire merit list will be disturbed. The variation of marks is the paramount consideration for preparation of merit list. 30. It appears from the aforesaid reference of the marks based upon the height that the marks vary from one centimeter. If the writ petitioner would have been given relaxation, the entire merit list will be disturbed. The variation of marks is the paramount consideration for preparation of merit list. 30. The writ petitioner, on earlier occasion had been allocated 12 marks, since, his height was assessed to be 177.5 cm. But on re-measurement when the height of the writ petitioner was found to be 177 cm, his marks automatically has reduced to 11, since, the marks has been earmarked for the candidates who are having the height 177.5 cm. 31. It appears from the pleading that the writ petitioner has never challenged the re-assessment of height to be 177, rather, his all along case is that he is to be given the relaxation on the basis of the order passed by the Deputy Inspector General of Police as contained in memo no. 337 dated 24.03.2007 which itself suggests that the writ petitioner has accepted his height to be 177 cm, otherwise, there was no reason for seeking relief based upon the decision taken vide memo no. 337 dated 24.03.2007. 32. Since, we have already given a finding that the Deputy Inspector General of Police is having no power to grant relaxation, rather, power to grant relaxation vests upon the State, therefore, there cannot be any relaxation. 33. Further, since the writ petitioner has accepted his height to be 177 cm, therefore, he on re-consideration of his height has been allocated 11 marks which is less than the last selected candidates and in that view of the matter, if the writ petitioner has not been selected/appointed, the selection process cannot be said to suffer from an error. 34. Further, since the writ petitioner has accepted his height to be 177 cm, therefore, he on re-consideration of his height has been allocated 11 marks which is less than the last selected candidates and in that view of the matter, if the writ petitioner has not been selected/appointed, the selection process cannot be said to suffer from an error. 34. The law is well settled that the scope of judicial review regarding the recruitment, is very limited and the same can only be exercised if there is any error in the decision making process of selection and not in the process of selection, as has been held by the Hon’ble Apex Court in the case of Syed T.A. Naqshbandi and Others vs. State of J&K and Others, (2003) 9 SCC 592 , wherein the Hon’ble Supreme Court has observed as under: “Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the Courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions....” 35. This Court, after having discussed the legal/factual aspect as above and coming to the order passed by the learned Single Judge, wherefrom, it appears that the learned Single Judge has given thoughtful consideration by taking into consideration the height of 177 cm and accordingly, 11 marks has been allocated and further by taking into consideration that the writ petitioner has obtained less marks than the last selected candidate and therefore, is of the view that there is no reason to interfere with the said order. 36. In the result, the instant appeal fails and is dismissed.