Jharkhand High Court
Reena Kumari vs Jharkhand Public Service ... on 25 August, 2021
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.146 of 2021
----
1. Reena Kumari, Aged about 43 years, Daughter of Uchit
Singh, resident of Mahuda Bazaar, P.O. & P.S. Mahuda,
District Dhanbad.
2. Gautam Kumar Rai, Aged about 42 years, Son of
Krishna Deo Rai, Resident of New Barganda, P.O. New
Barganda, P.S.Giridih, District-Giridih.
3. Ashutosh Nandan, Aged about 41 years, Son of Mahesh
Prasad Mishra, Resident of Shri Krishna Nagar, P.S.-
Buddha Colony, P.O.-G.P.O., Patna, House no.92, Road
No. 20, District - Patna, Bihar.
... ... Writ Petitioners/Appellants
Versus
1. Jharkhand Public Service Commission, Circular Road,
P.O. & P.S. Kotwali, District Ranchi-834001.
2. State of Jharkhand through Principal Secretary,
Personnel, Administrative Reforms & Rajbhasha
Department, Govt. of Jharkhand, Ranchi, Officiating at
Project Building, HEC Township, P.O. & P.S. Dhurwa,
District Ranchi.
... ... Respondents/Respondents
3. Mukesh Kumar, Aged about 41 years, Son of Sri Shiv
Nath Singh, Resident of Village Paharpur, P.O. & P.S.
Amnour, Distt. Chapra, Bihar.
... ... Petitioner No.1/Performa Respondent No.1
4. Manish Kumar, Aged about 41 years, Son of Raghaw
Dutta Pathak, Resident of Pandra, P.O. Hehal, P.S.
Sukhdeo Nagar, Distt. Ranchi.
... ... Petitioner No.2/Performa Respondent No.2
5. Anand Prakash Kumar, Aged about 46 years, Son of Late
Firu Ram, Resident of Rishabh Nagar, Road No.5B, P.O.
New Pundag, P.S. Dhurwa, Distt. Ranchi.
... ... Petitioner No.4/Performa Respondent No.3
With
L.P.A. No.172 of 2021
----
1. Amit Kumar, aged about 39 years, S/o Ram Narayan
Ojha, R/o Ojha Toli, P.O.-Purani Sahibganj, P.S. &
District - Sahibganj.
2. Noopur Baba, aged about 45 years, D/o Masihdas Baba,
R/o Village Basis, P.O., P.S. - Basia & District - Gumla.
3. Md. Jawed Salim, aged about 42 years, S/o Late Md.
Salim, R/o Hindpiri, Second Street, Near Post Office,
P.O., P.S. - Hindpiri & District - Ranchi.
... ... Petitioners/Appellants
Versus
1. The State of Jharkhand through the Chief Secretary,
having its office at Project Bhawan, Ranchi, P.O., P.S. -
Dhurwa, District - Ranchi.
2. The Principal Secretary, Department of Personnel,
Administrative Reforms and Rajbhasha, Government of
Jharkhand, having its office at Project Bhawan, Ranchi,
P.O., P.S. - Dhurwa, District - Ranchi.
3. The Jharkhand Public Service Commission through its
Chairman, having its office at Circular Road, P.O. -
Ranchi, P.S. - Kotwali & District - Ranchi.
4. The Secretary, Jharkhand Public Service Commission,
having its office at Circular Road, P.O. - Ranchi, P.S. -
Kotwali & District - Ranchi.
5. The Examination Controller, Jharkhand Public Service
Commission, having its office Circular Road, P.O. -
Ranchi, P.S. - Kotwali & District - Ranchi.
... ... Respondents/Respondents
With
L.P.A. No.173 of 2021
----
1. Sujeet Kumar, aged about 44 years, Son of S.N.
Acharya, R/o Sahdev Nagar Gas godam Road, P.O. &
P.S. Namkum and District Ranchi.
... ... Writ Petitioner No.6/Appellant No.1
2. Santosh Kumar, aged about 45 years, Son of Ram
Lakhan Prasad, R/o New Area Morabadi, Balku Oraon
Path, P.O. Ranchi University, P.S. Bariatu and District
Ranchi.
... ... Writ Petitioner No.2/Appellant No.2
3. Manoj Kumar Gupta, aged about 43 years, Son of Shiv
Nanadan Saw, R/o Village - Malda Patna, P.O. & P.S.
Gawan and District Giridih.
... ... Writ Petitioner No.3/Appellant No.3
4. Prabhu Prakash Oraon, aged about 46 years, Son of Sri
Manga Oraon, R/o village - Bahar Serka, P.O.
Bishunpur, P.S. Bishunpur and District Gumla.
... ... Writ Petitioner No.4/Appellant No.4
5. Amit Kumar Jha, aged about 44 years, Son of Rama
Kant Jha, R/o Bardhman Complex (Upper), Lalpur, P.O.
& P.S. Lalpur and District Ranchi.
... ... Writ Petitioner No.6/Appellant No.5
6. Pranav Kumar Roy, aged about 38 years, Son of Nirmal
Kumar Roy, R/o Garigaon, P.O. Hotwar, P.S. Khelgoan
and District Ranchi.
... ... Writ Petitioner No.1/Appellant No.6
7. Anand Kishor Dangi, aged about 44 years, Son of
Govind Dangi, R/o Village + Post - Gidhaur, P.S.
Gidhaur and District Chatra.
... ... Writ Petitioner No.7/Appellant No.7
8. Rajesh Kumar Mahto, aged about 44 years, Son of
Bhuwan Kumar Mahto, R/o Village Pithoria, P.O. & P.S.
Pithoria and District Ranchi.
... ... Writ Petitioner No.8/Appellant No.8
9. Wakil Yadav, aged about 45 years, Son of Ranjan Yadav,
R/o Village - Kasira Ambatoli, P.O. Patia, P.S. Gumla
and District Ranchi.
... ... Writ Petitioner No.9/Appellant No.9
Versus
1. The State of Jharkhand through the Chief Secretary,
having its office at Project Bhawan, Ranchi, P.O., P.S. -
Dhurwa, District - Ranchi.
2. The Principal Secretary, Department of Personnel,
Administrative Reforms and Rajbhasha, Government of
Jharkhand, having its office at Project Bhawan, Ranchi,
P.O., P.S. - Dhurwa, District - Ranchi.
3. The Jharkhand Public Service Commission through its
Chairman, having its office at Circular Road, P.O. -
Ranchi, P.S. - Kotwali & District - Ranchi.
4. The Secretary, Jharkhand Public Service Commission,
having its office at Circular Road, P.O. - Ranchi, P.S. -
Kotwali & District - Ranchi.
5. The Examination Controller, Jharkhand Public Service
Commission, having its office Circular Road, P.O. -
Ranchi, P.S. - Kotwali & District - Ranchi.
... ... Respondents/Respondents
With
L.P.A. No.174 of 2021
----
1. Atikur Rahman, aged about 43 years, S/o Ahmad
Hussain, R/o Village - Panki, P.O., P.S. - Panki &
District - Palamu.
2. Kaushalesh Kumar, aged about 43 years, S/o Sri
Harihar Mahto, R/o Village - Manika, P.O. - Chetma
(Kishunpuri), P.S. - Paton & District - Palamau.
3. Vijay Kumar Sharma, aged about 43 years, S/o Late
Prasadi Ram, R/o Sonbad, P.O. Kubri, P.S. Rajdhanwar
& District - Giridih.
4. Pradeep Kumar Pathak, aged about 44 years, S/o
Shyam Narayan Pathak, R/o Village - Lohari, P.O. -
Dhawadih, P.s. Lesliganj & District - Palamau.
5. Prashant Kumar, aged about 43 years, S/o Nrip Nandan
Singh, R/o Village - Safapur, P.O. - Safapur, P.S.
Nayaganw & District - Begusarai.
6. Kuldeep Mahota, aged about 44 years, S/o Devcharan
Mahto, R/o Haodar Ali Road, P.O. Kokar, P.S. Sadar &
District Ranchi.
... ... Petitioners/Appellants
Versus
1. The State of Jharkhand through the Chief Secretary,
having its office at Project Bhawan, Ranchi, P.O., P.S. -
Dhurwa, District - Ranchi.
2. The Principal Secretary, Department of Personnel,
Administrative Reforms and Rajbhasha, Government of
Jharkhand, having its office at Project Bhawan, Ranchi,
P.O., P.S. - Dhurwa, District - Ranchi.
3. The Jharkhand Public Service Commission through its
Chairman, having its office at Circular Road, P.O. -
Ranchi, P.S. - Kotwali & District - Ranchi.
4. The Secretary, Jharkhand Public Service Commission,
having its office at Circular Road, P.O. - Ranchi, P.S. -
Kotwali & District - Ranchi.
5. The Examination Controller, Jharkhand Public Service
Commission, having its office Circular Road, P.O. -
Ranchi, P.S. - Kotwali & District - Ranchi.
... ... Respondents/Respondents
6. Praveen Kujur, aged about 48 years, S/o Late George
Kujur, R/o Hatia, P.O., P.S. - Hatia & District - Ranchi.
... ... Writ Petitioner No.1/Performa Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Ajit Kumar, Senior Advocate
Ms. Aprajita Bhardwaj, Advocate
For the State : Mr. Rajiv Ranjan, Advocate General
Mr. Piyush Chitresh, A.C. to A.G.
For the JPSC : Mr. Sanjoy Piprawall, Advocate
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ORAL JUDGMENT
Order No. 06 : Dated 25th August, 2021
With the consent of the parties, hearing of the matters
has been done through video conferencing and there is no
complaint whatsoever regarding audio and/or video quality.
2. It has been submitted by Mr. Ajit Kumar, learned senior
counsel appearing for the appellants, that in all these appeals
similar issues are involved, therefore, all the appeals may be
heard together and may be disposed of by common order.
3. The same submission has been made by the learned
counsel appearing for the State and the JPSC.
4. In view thereof and considering the fact that the issues
involved in the four appeals are similar, all have been
heard together and are being disposed of by this common
order.
5. These appeals preferred under Clause 10 of the Letters
Patent are directed against the order/judgment dated
15.03.2021, 13.04.2021 and 07.04.2021 passed by learned
Single Judge of this Court in writ petitions being W.P.(C)
No.864 of 2021, W.P.(S) No.1214 of 2021, W.P.(S) No.1186 of
2021 and W.P.(S) No.1055 of 2021 respectively wherein the
issue raised pertains to issuance of following directions as
per the prayer made in the writ petitions which read as
under:-
i. For a declaration that the proviso to rule 4 of the
Jharkhand Combined Civil Services Examination
Rules, 2021 is contrary to rule 3(IV) of the said
Rule, 2021 and behest the parameters necessary
to mitigate the age gap of those whose age expired
due to non-compliance of Rule 3 of Civil Service
Rule, 1951 which is pari-materia of Rule 4 of the
New Rule 2021.
ii. For a further declaration that there is an abrupt
departure of cut-off date for counting the upper
age limit for appearing at the Combined Graduate
Level Civil Service Exam for Civil Service under
State, by notification dated 05.02.2021 was
without any valid reason, and, the apparent
objective to mitigate the ouster from zone of
consideration in non-holding of the examination
due from previously existing continuity was
broken without any valid reason thereby 5 years
galloping jump has dampened the prospects of all
such candidates due to non-compliance of
previous Rule 3 (now 3(IV) of 2021).
Learned Single Judge has dismissed the writ petitions
declining to issue a writ in the nature of mandamus for
relaxation of the upper age limit for participation in the
selection process of the 7th Combined Civil Services
Competitive Examination to be conducted by Jharkhand
Public Service Commission.
6. Brief facts of the case as per the pleadings made in the
writ petitions which require to be enumerated herein, read as
under :-
It is the case of the writ petitioners that one
advertisement being Advertisement No. 01/2020 was
published on 26.02.2020 for Combined Civil Service
Competitive Examination-2017, 2018 and 2019 in the State
of Jharkhand, wherein suitable relaxation was given for
computation of upper age limit as on 01.08.2011 for all the
clubbed vacancies following the pattern adopted in earlier six
consecutive yearly vacancies. However, due to Covid-19
pandemic, the said vacancy could not be finalized and in the
meantime, the Jharkhand Combined Civil Services
Examination Rules, 2021 was notified in the month of
January, 2021 which was to be effective prospectively.
Thereafter, the JPSC advertised Jharkhand Combined Civil
Services Competitive Exam, 2021 through JPSC website. As
per Clause 4 of the said advertisement, the upper age limit
has to be calculated on the basis of the cut-off date as
01.08.2016.
It is the further case of the writ petitioners that it would
be evident on examining the earlier rule vis-à-vis the new rule
that the provision of clubbing the vacancies for two or more
years together which has been made for the first time by
reasons of the proviso to Rule 4 of the Rules, 2021 is dehors
the rules itself.
It is the further case of the writ petitioners that if any
vacancy arises in a particular year but the same could not be
filled up for some reason or the other, then all the eligible
candidates who are left over will have the subsisting right
under Article 16 of the Constitution of India to be considered
for that post and any attempt to exclude those candidates
shall be an aberration of the constitutional mandate.
It has further been submitted that though the State has
the discretionary power to fix the cut-off date for computing
the age, yet the said discretion cannot be exercised
arbitrarily, rather must be based on rational thinking.
The plea of the respondent State of Jharkhand before
the writ curt was that Rules, 2021 has been notified by the
State Government in order to remove the deficiencies in the
earlier rules to hold combined competitive examination every
year.
It has been submitted that vide resolution no. 7052
dated 17.08.2016, the cut-off dates for the calculation of the
upper and lower age limit in the Combined Civil Services
Examination, 2016 were fixed as 01.08.2010 and 01.08.2016
respectively. Therefore, as per the aforesaid decision
regarding calculation of the age based upon cut-off date, the
candidates belonging to the unreserved category having
completed minimum age limit of 20-22 years and maximum
age limit of 41 years on the aforesaid cut-off dates were
included.
It is the further case of the respondent State of
Jharkhand before the writ court that the State Government,
vide resolution no. 805 dated 05.02.2021, decided to keep the
cut-off date for calculation of upper and lower age limit as
01.08.2016 and 01.03.2021 respectively and accordingly, the
JPSC has published Advertisement No. 01/2021. As such,
the Government has taken rational decision in fixing the cut-
off date for age calculation because the candidates belonging
to unreserved category having completed minimum age limit
of 21 years and maximum age limit of about 40 years on the
aforesaid cut-off dates could be included and, therefore, the
age relaxation is almost similar in 6th Combined Civil Services
Examination and the 7th Combined Civil Services
Examination, 2021.
It has been submitted that the Government has taken a
decision for relaxation of the age taking into consideration the
fact that there was delay in conducting the examination after
2016 and, therefore, one time age relaxation has been
decided to be given vide resolution no. 805 dated 05.02.2021
and if the relaxation would be given even beyond the
cut-off date of 01.08.2016, it will be an unending process.
The learned Single Judge, after taking into consideration
the rival submissions advanced on behalf of the parties and
considering the judicial pronouncements of the Hon‟ble Apex
Court as also considering the fact that fixing the cut-off date
being a policy decision, has declined to pass positive direction
in favour of the writ petitioners and accordingly dismissed it.
7. Mr. Ajit Kumar, learned senior counsel appearing for the
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appellants-writ petitioners, assisted by Ms. Aprajita
Bhardwaj, has submitted by referring to the provision of
earlier Rule of the year 1951 which provides that the
mandate of law is to conduct the examination in the month of
November and February of each and every year and the State
Government having failed to do so, the candidates like the
writ petitioners cannot be allowed to suffer due to laches
committed on the part of the Government.
It has been submitted that the relaxation was being
given in the maximum age limit as per the history of the
Combined Competitive Examination conducted by the JPSC
and as such, not giving such relaxation even though the
laches are on the part of the State authority, will be nothing
but an arbitrary exercise of power of the State respondent.
It has further been submitted that the advertisement
had already been issued being Advertisement No.01/2020
clubbing together the vacancies of three years i.e., of the year
2017, 2018 and 2019 fixing the maximum cut-off date as on
01.08.2011 but the examination could not be conducted and
if in the meanwhile a new rule has come in the year 2021, the
cut-off date should not have been shifted from 01.08.2011 to
01.08.2016 but that has been done without taking into
consideration the predicament of the candidates who had to
make their application in pursuance of the advertisement
No.01/2020 and thereby their right of a chance for
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consideration by participating in the selection process has
been snatched away.
Learned senior counsel, in order to buttress his
argument, has relied upon the judgment rendered by Hon'ble
Apex Court in The State of Andhra Pradesh v.
T.Ramakrishna Rao and Others [(1972) 4 SCC 830].
8. Per contra, learned Advocate General appearing for the
State of Jharkhand, has submitted that fixing of the cut-off
date is a policy decision of the State Government and though
the subsequent Rule of the year 2021 does not provide for
relaxation in age but taking into consideration the
predicament of the candidates, the age has been relaxed
fixing the cut-off date as on 01.08.2016 which is having the
rationale because it is the date of issuance of the
advertisement of 6th Combined Civil Services Examination
conducted by the JPSC wherein the maximum cut-off date
has been fixed as 01.08.2010 and as such, the candidates
have got opportunity to participate in the process of selection
from 01.08.2010 to 01.08.2016. In order to provide an
opportunity to participate in the process of selection, the cut-
off date in pursuance of the subsequent advertisement being
Advertisement No.01/2021, has been fixed to 01.08.2016 and
as such, it cannot be said that the State Government has
acted irrationally and anybody has been deprived from a
chance to participate in the process of selection. Therefore,
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the action of the State Government in fixing the upper age
limit as on 01.08.2016 cannot be said to be an arbitrary
action.
According to the learned Advocate General, the learned
Single Judge, after taking into consideration these aspects of
the matter, has not passed any positive direction, which
cannot be said to suffer from any error. Therefore, the
appeals deserve to the dismissed.
He has placed reliance upon the judgment of Hon'ble
Apex Court rendered in Dr. Ami Lal Bhat v. State of
Rajasthan and Others [(1997) 6 SCC 614] and Rajasthan
Public Service Commission v. Smt. Anand Kanwar and
Others [1995 3 Scale 192].
9. We have heard the learned counsel for the parties,
perused the documents available on record as also the
finding recorded by the learned Single Judge in the impugned
order.
10. This Court, before proceeding further to scrutinize the
propriety and legality of the impugned order, requires to refer
certain admitted facts which read as hereunder :-
The State of Jharkhand has been created with effect
from 15.11.2000 as also the Jharkhand Public Service
Commission. After creation of the State of Jharkhand, the
posts of Class-II Services in the State was being filled up on
the basis of the Bihar Civil Services (Executive Branch) and
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Bihar Junior Civil Services (Recruitment) Rules, 1951
(hereinafter referred as the Rules, 1951) published vide
Notification No. G.S.R. 28, dated the 17th November, 1995
after being published in the Bihar Gazette (Extraordinary)
dated 17.11.95 in exercise of the powers conferred by Proviso
to Article 309 of the Constitution of India which shall deem to
have come into force with effect from 23rd January, 1992.
The Rule 4 thereof provided that the Commission would
announce in each year in such manner as it think fit, the
number of vacancies in each service to be filled by direct
appointment on the basis of the result of competitive
examination and shall invite applications from candidates
eligible for appointment under Rules 6 and 7. The competitive
examination would be conducted by the Commission and
would normally be held between the months of November and
February unless otherwise notified.
Under Rule 6 thereof, the prescription of age for male
and female candidates had been provided.
The JPSC till date had conducted Combined Competitive
Civil Services Examinations which are six in number.
The JPSC came out with an advertisement i.e.,
Advertisement No.01/2020 inviting applications to fill up the
post of the year 2017, 2018 and 2019. In the said
advertisement, the calculation of age was provided under
Condition No.4 prescribing therein the cut-off date, i.e.,
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01.08.2019 for calculating the minimum age and 01.08.2011
for calculating the maximum age.
The examination, however, could not be conducted for
one reason or the other in pursuance to the Advertisement
No.01/2020 and in the meanwhile, the State of Jharkhand
through the Department of Personnel, Administrative
Reforms and Rajbhasha, came out with a Rule in the name
and style of the „Jharkhand Combined Civil Services Rules,
2021‟ framed in exercise of power enshrined under the
Proviso to Article 309 of the Constitution of India but without
having any provision for relaxation of age fixing the minimum
age of 21 years and maximum age of 35 years as on first day
of the following month from the date of publication of
advertisement.
The respondent State of Jharkhand has also come out
with a circular as on 05.02.2021 for fixation of cut of date for
calculation of maximum and minimum age which was issued
in anticipation of issuance of advertisement in the month of
February, 2021 and therefore, the decision was taken to
calculate the maximum age by fixing the cut of date as on
01.08.2016 and minimum age as on 01.03.2021. Subsequent
thereto, advertisement was issued being Advertisement
No.01/2021 inviting applications after merging the vacancies
of the year 2017, 2018, 2019 and 2020.
The writ petitioners, being aggrieved with the action of
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the State in fixing the cut-off date as 01.08.2016 for
calculation of maximum age, filed writ petitions questioning
such decision of fixation of cut-off date for calculation of
maximum age as 01.08.2016 whereas in the Advertisement
No.01/2020 dated 26.02.2020 it was 01.08.2011.
Submission has been made on behalf of the learned
counsel for the writ petitioners that such action of the State
respondent is arbitrary, unreasonable and irrational on the
ground that if no examination has been conducted in
between the year 2016 to 2020, which was required to be
conducted in pursuance to the mandate of Rule of 1951, then
why the candidates will suffer due to the laches committed on
the part of the State Government.
On the other hand, the plea of the respondent State of
Jharkhand is that the decision of the State Government being
a policy decision and even though in the Rule of 2021 there is
no provision to grant relaxation but taking the rational
approach, the State Government has relaxed the cut-off date
to calculate the maximum age as on 01.08.2016 so that the
candidates who had not participated in the process of
selection for the vacancy of 2017, 2018, 2019 and 2020 may
participate.
Further contention is that it is not a case that any
candidate has been deprived from participating rather the
candidates have participated in the 6th Combined Civil
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Services Examination which was conducted in the year 2016
wherein the cut-off date for calculating the maximum age was
01.08.2010 and thereafter the cut-off date to calculate the
maximum age has been fixed as 01.08.2016 so that the
candidates could not participate due to the fact the exams
could not be conducted, may participate after getting such
relaxation and, as such, it cannot be said that the State has
acted irrationally.
The learned Single Judge, after appreciating these
aspects of the matter, has dismissed the writ petitions
holding that in the matter of policy decision unless it is
shown to suffer from vice or malice, there cannot be
interference under Article 226 of the Constitution of India.
11. This Court, therefore deems it fit and proper first to
consider the fact as to whether in the policy decision the High
Court sitting under Article 226 of the Constitution of India
can interfere particularly in the matter of fixation of age.
It is settled that the policy decision of the State
Government is least to be interfered by the High Court in
exercise of its power under Article 226 of the Constitution of
India unless it is arbitrary and suffers from malice or any
other vice.
In the judgment rendered by Hon'ble Apex Court in
K.Nagaraj and Others v. State of Andhra Pradesh and
Another [(1985) 1 SCC 523] wherein the issue was regarding
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reduction of the age of retirement from 58 to 55 years. The
Hon'ble Apex Court has been pleased to hold that the same
was taken by virtue of policy decision in order to provide
employment opportunity to the younger sections of the
society and the need to open up promotional opportunities to
employees at the lower levels early in their career and since it
is based upon reasonable consideration, it was declined to be
interfered with.
In the case of State of Jharkhand and Others v.
Ashok Kumar Dangi and Others [(2011) 13 SCC 383], the
Hon'ble Apex Court has been pleased to hold at paragraph 17
and 18 which are quoted hereunder :-
"17. The High Court has found that the
Government of Jharkhand, till date, had not
framed any policy regarding the number of posts
to be filled by physical trained candidates. How
many posts of primary school teachers be filled up
by physical trained candidates, in our opinion, is
essentially a question of policy for the State to
decide. In framing of the policy, various inputs are
required and it is neither desirable nor advisable
for a court of law to direct or summarise the
Government to adopt a particular policy which it
deems fit or proper. It is well settled that the State
Government must have liberty and freedom in
framing policy. Further, it also cannot be denied
that the courts are ill-equipped to deal with
competing claims and conflicting interests. Often,
the courts do not have the satisfactory and
effective means to decide which alternative, out of
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the many competing ones, is the best in the
circumstances of the case.
18. One may contend that providing primary
education to the children is essential for the
development of the country. Whereas others argue
that physical training of the children in the
primary schools is must as that would make the
nation healthy. As in the present case, the
candidates trained in teaching claim that the posts
of primary school teachers be filled by them and
physical trained candidates be considered for
posts of physical trained teachers only as they in
the absence of any training in education are not
equipped to teach in primary schools, whereas
physical trained teachers contend that they should
be considered for appointment against both the
posts. These competing claims, in our opinion,
need to be addressed by the policy-makers.
Further, we do not have the statistics as regards to
the number of primary schools, the resources
which the Government can spend for providing
physical trained teachers and their need. In such a
situation, any direction in matters of policy is
uncalled for."
Thus, it has been laid down that the State Government
must have liberty and freedom in framing policy and further,
it has been held that the courts are ill-equipped to deal with
competing claims and conflicting interests. Often, the courts
do not have the satisfactory and effective means to decide
which alternative, out of the many competing ones, is the
best in the circumstances of the case.
In the case of Census Commissioner and Others v.
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R.Krishnamurthy [(2015) 2 SCC 796], Their Lordships at
the Hon'ble Apex Court have been pleased to hold at
paragraph 25 as hereunder :-
"25. Interference with the policy decision and
issue of a mandamus to frame a policy in a
particular manner are absolutely different. The Act
has conferred power on the Central Government to
issue notification regarding the manner in which
the census has to be carried out and the Central
Government has issued notifications, and the
competent authority has issued directions. It is
not within the domain of the court to legislate. The
courts do interpret the law and in such
interpretation certain creative process is involved.
The courts have the jurisdiction to declare the law
as unconstitutional. That too, where it is called
for. The court may also fill up the gaps in certain
spheres applying the doctrine of constitutional
silence or abeyance. But, the courts are not to
plunge into policy-making by adding something to
the policy by way of issuing a writ of mandamus.
There the judicial restraint is called for
remembering what we have stated in the
beginning. The courts are required to understand
the policy decisions framed by the executive. If a
policy decision or a notification is arbitrary, it may
invite the frown of Article 14 of the Constitution.
But when the notification was not under assail
and the same is in consonance with the Act, it is
really unfathomable how the High Court could
issue directions as to the manner in which a
census would be carried out by adding certain
aspects. It is, in fact, issuance of a direction for
framing a policy in a specific manner."
- 20 -
In Delhi Subordinate Services Selection Board v.
Praveen Kumar [2016 SCC OnLine SC 1549], it has been
held that it is the employer's prerogative to decide the age-
limit and academic suitability of candidates which they wish
to employ and so long as the same are not contradictory to
the academic eligibility as prescribed by the NCTE Act.
In the case of Chandigarh Administration through the
Director Public Instructions (Colleges), Chandigarh v.
Usha Kheterpal Waie and Others [(2011) 9 SCC 645], the
Hon'ble Apex Court has held at paragraph 22 and 23 which
read as hereunder :-
"22. It is now well settled that it is for the rule-
making authority or the appointing authority to
prescribe the mode of selection and minimum
qualification for any recruitment. The courts and
tribunals can neither prescribe the qualifications
nor entrench upon the power of the authority
concerned so long as the qualifications prescribed
by the employer is reasonably relevant and has a
rational nexus with the functions and duties
attached to the post and are not violative of any
provision of the Constitution, statute and rules.
(See J. Ranga Swamy v. Govt. of A.P. [(1990) 1
SCC 288 : 1990 SCC (L&S) 76] and P.U.
Joshi v. Accountant General [(2003) 2 SCC 632 :
2003 SCC (L&S) 191] .) In the absence of any
rules, under Article 309 or statute, the appellant
had the power to appoint under its general power
of administration and prescribe such eligibility
criteria as it is considered to be necessary and
- 21 -
reasonable. Therefore, it cannot be said that the
prescription of PhD is unreasonable.
23. The Tribunal and the High Court have held
that in the years 1989 and 1991, the Tribunal
had accepted that the earlier administrative
instructions dated 20-8-1987 which required the
UT cadre employees to be considered for the post
have to be followed. The fact that at that time PhD
degree was not insisted upon, does not mean that
for all times to come, PhD degree could not be
insisted. PhD degree was made a qualification
because UGC guidelines required it for direct
recruitment post and the UPSC approved the
same. Therefore, merely because on some earlier
occasions, the posts of Principal were filled by UT
cadre lecturers without PhD degree, it cannot be
argued that the PhD degree cannot be prescribed
subsequently."
Thus, it is evident that the interference by way of
exercise of power under judicial review is only to the extent if
it has been found that the action of the State is arbitrary and
suffers from the vice or malice.
12. So far as the fact of the given case is concerned, it is not
in dispute that for one reason or the other the Combined Civil
Services Competitive Examination could not be notified after
2016 i.e., up to the advertisement published on 26.02.2020
being Advertisement No.01/2020 clubbing together the
vacancies of the year 2017, 2018 and 2019 fixing the cut-off
date for calculating upper age limit as 01.08.2011 but the
process of selection could not proceed as in the meanwhile,
- 22 -
the State Government came out with a new Rule in the year
2021 in exercise of power conferred under Proviso to Article
309 of the Constitution of India. The said Rules, 2021 does
not contain any provision of relaxation in the age as has also
not been provided under the earlier Rule of the year 1951.
The State Government has come up with a resolution on
05.02.2021 whereby and whereunder the relaxation in the
age has been decided to be given fixing it for maximum age as
on 01.08.2016 and for minimum age as on 01.03.2021.
Thereafter, the earlier advertisement was cancelled and a new
advertisement has been published being Advertisement
No.01/2021 inviting online applications by merging the
vacancies of the year 2017, 2018, 2019 and 2020 and in
pursuance to the resolution dated 05.02.2021 the cut-off
date for the maximum age has been fixed as 01.08.2016 and
the minimum age as 01.03.2021.
The plea taken by the State of Jharkhand in the counter
affidavit is that the relaxation of five years has been given by
enhancing it from 35 years to 39 years 8 months years so far
as it relates to unreserved category candidates and likewise,
41 years and 8 months for Extremely Backward Classes
(Annexure-I)/Backward Classes (Annexure-II), 42 years 8
months so far as it relates to Female (Unreserved/Extremely
Classes (Annexure-I)/Backward Classes (Annexure-II), 44
- 23 -
years 8 months for Scheduled Tribes/Scheduled Castes (Male
and Female) and 39 years 8 months so far as it relates to
Economically Weaker Section.
It further appears from the counter affidavit that in the
6th Combined Civil Services Competitive Examination, 2016
the cut-off date for calculation of the upper and lower age
limit were 01.08.2010 and 01.08.2016 and as per the cut-off
date decided for calculation of the upper age limit, the
possible maximum age attained by the candidate belonging to
the various categories as on August, 2016 is as follows:
Sl. Category Upper Age Possible
No. Limit (Cut Off maximum age
date attained in
01.08.2010) August, 2016
1 Unreserved 35 years 41 years
2 Extremely Backward 37 years 43 years
Classes (Annexure-
I)/Backward Classes
(Annexure-II)
3 Female 38 years 44 years
(Unreserved/Extremely
Classes (Annexure-
I)/Backward Classes
(Annexure-II)
4 Scheduled 40 years 46 years
Tribes/Scheduled Castes
(Male and Female)
As such, the minimum age was 20 - 22 years and
maximum age limit was 41 years for the unreserved category
candidates.
Similarly, vide resolution No. 805 dated 05.02.2021 the
condition has been stipulated in the advertisement being
Advertisement No.01/2021 by granting relaxation in age
- 24 -
which required to be referred herein by way of tabular chart -
Sl. Category Upper Age Possible
No. Limit (Cut Off maximum age
date attained in
01.08.2016) March, 2021
1 Unreserved 35 years 39 years 8
months
2 Extremely Backward 37 years 41 years 8
Classes (Annexure- months
I)/Backward Classes
(Annexure-II)
3 Female 38 years 42 years 8
(Unreserved/Extremely months
Classes (Annexure-
I)/Backward Classes
(Annexure-II)
4 Scheduled 40 years 44 years 8
Tribes/Scheduled Castes months
(Male and Female)
5 Economically Weaker 35 years 39 years 8
Section months
Thus, it is evident that the State of Jharkhand has tried
to make a balance by giving age relaxation as was given in 6th
Combined Civil Services Competitive Examination. This time,
i.e., 7th Combined Civil Services Competitive Examination, the
minimum age limit being 21 years and maximum age limit 40
years, almost similar situation is there.
Thus, the said approach of the State Government,
according to our considered view, cannot be said to suffer
from any arbitrariness and irrationality rather the
Government, by even going beyond the scope of the Rules,
2021, has granted relaxation of five years for the upper age
limit but the claim of the writ petitioners is that the cut-off
date for calculating the maximum age ought to have been
fixed as year 2011, which was fixed in the earlier
- 25 -
advertisement but that cannot be said to be an acceptable
argument. If that is accepted then it will be an unending
process and if such extension would be granted up to the
year 2011 then the question would be why not beyond the
period of the year 2011? Considering such aspect of the
matter, if the State Government has taken such decision, it
cannot be said to suffer from any irrational approach.
13. Further, this Court has considered the approach of the
State Government from the other angle also i.e., if the
maximum age either for the unreserved category candidate or
reserved category candidate which is at the moment is about
40 years and 45 years and if further five - six years‟
relaxation would be granted, it will mean that a candidate
having more than the age of 50 years will be allowed to
participate in the process of selection and if such candidates
will be selected, they will have tenure of service for a period of
seven to eight years only which also cannot be said to be a
proper approach.
In this context, we have considered the judgment
rendered by Hon'ble Apex Court in Dr. Ami Lal Bhat v.
State of Rajasthan and Others (Supra) wherein the issue of
consideration was interference by the court of law in fixation
of cut-off date. The Hon'ble Apex Court has been pleased to
consider it and hold that there cannot be any wholesale
relaxation because the advertisement is delayed or because
- 26 -
the vacancy occurred earlier especially when there is no
allegation of any mala fide in connection with any delay in
issuance of advertisement. For ready reference paragraphs
10, 11 and 12 of the said judgment are being referred as
hereunder :-
"10. It is next contended on behalf of the
appellants/petitioners that under all the service rules
concerned there is a provision for age relaxation. In
Rule 11(A) of the Rajasthan Medical Services
(Collegiate Branch) Rules, there is a provision for age
relaxation by 5 years by the Government in
consultation with the Commission. There is also Rule
35 in the said Rules which gives a general power to
relax rules in exceptional cases where the Government
is satisfied that it is necessary, inter alia, to relax any
provision of these Rules with respect to age or
experience of any person and this can be done with the
concurrence of the Department of Personnel and
Administrative Reforms and in consultation with the
Rajasthan Public Service Commission. It is urged that
in the case of all those persons who are adversely
affected because the advertisement for recruitment is
issued later than the occurrence of the vacancy,
corresponding age relaxation should be given to all
candidates. In other words, what is contended is that if
on the date when the vacancy occurred, the candidates
were within the maximum age prescribed by reference
to the cut-off date, then if the advertisement is
delayed, their age should be considered with reference
to the cut-off date of 1st January following the date of
occurrence of vacancy. For example, if the vacancy has
occurred on 1st of April of a given year, and the
applicant would be within the maximum age on the 1st
of January of the following year, then such a candidate
will be considered as eligible even if the advertisement
is issued not in April of that year but say February of
- 27 -
the following year. All the candidates will get age
relaxation of one year.
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 of
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.
12. In the premises we do not see any reason to set
aside the cut-off date fixed by the relevant rules. The
judgments of the Division Benches of the Rajasthan
High Court insofar as they strike down 1st of January
of the following year as the cut-off date for determining
the maximum age of a candidate for selection, require
to be set aside."
Further, we have also considered the judgment rendered
by Hon'ble Apex Court in Rajasthan Public Service
Commission v. Smt. Anand Kanwar and Others (Supra).
The relevant passage therefrom is extracted and quoted as
- 28 -
hereunder :-
"3. We are of the view that the High Court fell into
patent error bordering on perversity in issuing the
mandamus on the reasoning quoted above. It is settled
proposition of law that the eligibility of a candidate has
to be determined on the basis of the terms and
conditions of the advertisement in response to which
the candidate applies. There is nothing on the record
to show that the State Government was in any manner
negligent or at fault in not making the direct
recruitment during the period 1983-89. Be that as it
may, the High Court was not justified in taking the
clock back to the period when unfilled vacancies were
existing and holding that since the respondent was
eligible on the date when vacancies fell vacant, she
continues to be so till the time the vacancies are filled.
Due to inaction on the part of the State Government in
not filling the posts year-wise, the respondent cannot
get a right to participate in the selection despite being
over-aged."
Thus, it has been decided in cases as aforesaid that
passing direction for relaxation in age by the High Court
sitting under Article 226 of the Constitution of India would be
incorrect even in a case where due to inaction of the State,
vacancies could not be filled.
14. The learned counsel for the writ petitioners, however,
has tried to impress upon the Court by placing reliance upon
the judgment rendered by Hon'ble Apex Court in The State
of Andhra Pradesh v. T.Ramakrishna Rao and Others
(Supra) but we, after going through the factual aspect
involved therein, have found that the fact involved in the
- 29 -
aforesaid case was quite different to that of the fact involved
in this case. In the said case, advertisement was issued for
filling up 60 vacancies on the basis of unamended Rule i.e.
unamended Rule 5, but subsequently Rule 5 was amended
and in the meanwhile the vacancies increased to 200 and,
therefore, the Commission decided to hold a fresh
examination under the amended Rule 5 but the High Court
turned down this proposal and directed the Commission to
hold a separate examination for those who had applied in
1968 under the unamended Rule in respect of original 60
vacancies and to invite separate applications and hold a
separate examination for remaining 140 vacancies.
The reason given for such a direction was that if the
respondents were required to submit fresh applications and
made to appear in the examination along with the rest of the
applicants there would be violation of Article 16. But in the
case in hand, the fact is otherwise as fresh advertisement has
been issued clubbing the vacancies of the year 2017, 2018,
2019 and 2020 and no application form had ever been
accepted from any of the candidate with respect to the earlier
advertisement which was later on cancelled and which is
admitted case of the parties. Hence the aforesaid judgment is
not applicable in the facts of this case.
We have travelled across the finding recorded by the
learned Single Judge and found therefrom that the learned
- 30 -
Single Judge has considered the judgment rendered by
Hon'ble Apex Court in Hirandra Kumar Vs. High Court of
Judicature at Allahabad and Anr." [(2019) SCC OnLine SC
254], laying down the governing principle to determine the
cut-off date which can be interfered only when the decision of
the State Government suffers from malice and based upon
such finding, the conclusion has been arrived at that the writ
petitioners have failed to establish any case of malice on the
part of the State Government and, therefore, dismissed the
writ petitions.
This Court, on the basis of the principle laid down by
Hon'ble Apex Court in Dr. Ami Lal Bhat v. State of
Rajasthan and Others (Supra) and Rajasthan Public
Service Commission v. Smt. Anand Kanwar and Others
(Supra) as also on the basis of the discussions made
hereinabove in detail, is of the view that the judgment passed
by learned Single Judge requires no interference.
15. Accordingly, these appeals stand dismissed.
16. Consequently, interlocutory applications being I.A. Nos.
2354 of 2021, 2957 of 2021, 2958 of 2021 and 2959 of 2021
also stand dismissed.
17. Before parting with the judgment, it requires to refer
that when this Court after hearing at length almost formed
the view that it will not interfere with the order impugned,
Mr. Ajit Kumar, learned senior counsel appearing for the
- 31 -
appellants, has submitted that since the Rule of 2021 does
not contain any provision for extending the benefit of
relaxation, therefore, whatever relaxation has been provided
in pursuance to the resolution dated 05.02.2021, the same
may be held to be contrary to the statutory provision.
On such argument, when we put a query upon the
learned senior counsel to the effect that can he be allowed to
retract from his prayers and submissions made in the writ
petition wherein the prayer has been made to extend the
benefit of relaxation in the age? When the Court is dismissing
the appeal, can he be allowed to take such a plea contrary to
his case? Can he be allowed to submit that either relaxation
of age as per his desire be given or the relaxation given
should be held invalid?
He failed to give proper reply. Therefore, according to
our considered view, such type of argument, as has been
advanced by learned senior counsel appearing for the writ
petitioners-appellants, is nothing but misconceived one as he
cannot be allowed to argue contrary to his pleading and
retract from the submission made by him either before the
writ court or this Court that too without making any prayer
or pleading in the writ petition. All along in the writ petition
the case of the writ petitioners was to extend the benefit of
relaxation of age as was there in the earlier advertisement,
hence the same is rejected.
- 32 -
The issue of retrospective application of the Rules, 2021
in the advertisement of the year 2017, 2018 and 2019, which
was the subject matter of the earlier advertisement, has been
raised in course of argument also but we have not thought it
proper to consider it because no pleading of the writ
petitioners in the writ petition. The writ petitioners, from the
threshold, are seeking benefit of relaxation in pursuance to
advertisement No.01/2021 so far as it relates to the
vacancies of the year 2017, 2018 and 2019 are concerned,
which has been readvertised in pursuance to the Rules, 2021
and accordingly, this submission is hereby rejected.
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Birendra/ A.F.R.
